Exhibit 4.1
Pooling and Servicing Agreement
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
CAPMARK FINANCE INC.,
as Capmark Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Xxxxx Fargo Master Servicer,
NCB, FSB,
as NCB Master Servicer,
CENTERLINE SERVICING INC.,
as General Special Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar and Authenticating Agent,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2007
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-IQ16
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 Definitions..................................................
Section 1.2 Calculations Respecting Mortgage Loans.......................
Section 1.3 Calculations Respecting Accrued Interest.....................
Section 1.4 Interpretation...............................................
Section 1.5 ARD Loans....................................................
Section 1.6 Certain Matters with Respect to the Serviced Loan Groups.....
Section 1.7 Certain Matters Relating to the Non-Trust Serviced Pari
Passu Loans.................................................
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.................................
Section 2.2 Acceptance by Trustee........................................
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and
Warranties..................................................
Section 2.4 Representations and Warranties...............................
Section 2.5 Conveyance of Interests......................................
Section 2.6 Certain Matters Relating to Non-Trust Serviced Pari Passu
Loans.......................................................
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.............................................
Section 3.2 Registration.................................................
Section 3.3 Transfer and Exchange of Certificates........................
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 3.5 Persons Deemed Owners........................................
Section 3.6 Access to List of Certificateholders' Names and Addresses....
Section 3.7 Book-Entry Certificates......................................
Section 3.8 Notices to Clearing Agency...................................
Section 3.9 Definitive Certificates......................................
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by the Master Servicers.........................
Section 4.1A P&I Advances with Respect to the Non-Trust Serviced Pari
Passu Loans.................................................
Section 4.2 Servicing Advances...........................................
Section 4.3 Advances by the Trustee......................................
Section 4.4 Evidence of Nonrecoverability................................
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan.............................
Section 4.6 Reimbursement of Advances and Advance Interest...............
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections..................................................
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Account....................................
Section 5.3 Distribution Account, Excess Interest Sub-account,
Reserve Account and Floating Rate Accounts..................
Section 5.4 Paying Agent Reports.........................................
Section 5.5 Paying Agent Tax Reports.....................................
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally......................................
Section 6.2 REMIC I......................................................
Section 6.3 REMIC II.....................................................
Section 6.4 [Reserved]...................................................
Section 6.5 REMIC III....................................................
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability.........................
Section 6.7 Net Aggregate Prepayment Interest Shortfalls.................
Section 6.8 Adjustment of Servicing Fees.................................
Section 6.9 Appraisal Reductions.........................................
Section 6.10 Compliance with Withholding Requirements.....................
Section 6.11 Prepayment Premiums and Yield Maintenance Charges............
Section 6.12 Other Distributions..........................................
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE, THE CERTIFICATE REGISTRAR, AND THE
PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent...................
Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent...
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans.................
Section 7.4 The Trustee and the Paying Agent May Own Certificates........
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent.......................................................
Section 7.6 Resignation and Removal of the Trustee or the Paying Agent...
Section 7.7 Successor Trustee or Paying Agent............................
Section 7.8 Merger or Consolidation of Trustee or Paying Agent...........
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian...................................................
Section 7.10 Authenticating Agents........................................
Section 7.11 Indemnification of the Trustee and the Paying Agent..........
Section 7.12 Fees and Expenses of Trustee and the Paying Agent............
Section 7.13 Collection of Moneys.........................................
Section 7.14 Trustee to Act; Appointment of Successor.....................
Section 7.15 Notification to Holders......................................
Section 7.16 Representations and Warranties of the Trustee and Paying
Agent.......................................................
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent..............
Section 7.18 Appointment of a Fiscal Agent................................
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties.........................
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers..........................
Section 8.3 Master Servicers' General Power and Duties...................
Section 8.4 Primary Servicing and Sub-Servicing..........................
Section 8.5 Servicers May Own Certificates...............................
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and Taxes...
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause.......................
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files......
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicers to Be Held for the Trustee for the Benefit of
the Certificateholders......................................
Section 8.10 Servicing Compensation.......................................
Section 8.11 Master Servicer Reports; Account Statements..................
Section 8.12 [Reserved]...................................................
Section 8.13 [Reserved]...................................................
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties........................................
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer.............................................
Section 8.16 Rule 144A Information........................................
Section 8.17 Inspections..................................................
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents....................................................
Section 8.19 Specially Serviced Mortgage Loans............................
Section 8.20 Representations, Warranties and Covenants of the Master
Servicers...................................................
Section 8.21 Merger or Consolidation......................................
Section 8.22 Resignation of the Master Servicer...........................
Section 8.23 Assignment or Delegation of Duties by a Master Servicer......
Section 8.24 Limitation on Liability of the Master Servicers and Others...
Section 8.25 Indemnification; Third-Party Claims..........................
Section 8.26 [Reserved]...................................................
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions..................................................
Section 8.28 Termination..................................................
Section 8.29 Procedure Upon Termination...................................
Section 8.30 Notification to Certificateholders...........................
Section 8.31 Swap Transactions............................................
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY THE
SPECIAL SERVICERS
Section 9.1 Duties of the Special Servicers..............................
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy
of the Special Servicers....................................
Section 9.3 Sub-Servicers................................................
Section 9.4 Special Servicers' General Powers and Duties.................
Section 9.5 "Due-On-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced Mortgage
Loans; Due-On-Encumbrance Clauses...........................
Section 9.6 Release of Mortgage Files....................................
Section 9.7 Documents, Records and Funds in Possession of the Special
Servicers to Be Held for the Trustee........................
Section 9.8 Representations, Warranties and Covenants of the Special
Servicers...................................................
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies................................
Section 9.10 Presentment of Claims and Collection of Proceeds.............
Section 9.11 Compensation to the Special Servicers........................
Section 9.12 Realization Upon Defaulted Mortgage Loans....................
Section 9.13 Foreclosure..................................................
Section 9.14 Operation of REO Property....................................
Section 9.15 Sale of REO Property.........................................
Section 9.16 Realization on Collateral Security...........................
Section 9.17 [Reserved]...................................................
Section 9.18 [Reserved]...................................................
Section 9.19 [Reserved]...................................................
Section 9.20 Merger or Consolidation......................................
Section 9.21 Resignation of Special Servicers.............................
Section 9.22 Assignment or Delegation of Duties by a Special Servicer.....
Section 9.23 Limitation on Liability of the Special Servicers and
Others......................................................
Section 9.24 Indemnification; Third-Party Claims..........................
Section 9.25 [Reserved]...................................................
Section 9.26 Special Servicers May Own Certificates.......................
Section 9.27 Tax Reporting................................................
Section 9.28 Application of Funds Received................................
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions..................................................
Section 9.30 Termination..................................................
Section 9.31 Procedure Upon Termination...................................
Section 9.32 Certain Special Servicer Reports.............................
Section 9.33 Special Servicers to Cooperate with the Master Servicers,
the Paying Agent and the Trustee............................
Section 9.34 [Reserved]...................................................
Section 9.35 [Reserved]...................................................
Section 9.36 Sale of Defaulted Mortgage Loans.............................
Section 9.37 Operating Adviser; Elections.................................
Section 9.38 Limitation on Liability of Operating Adviser.................
Section 9.39 Rights of Operating Adviser..................................
Section 9.40 Rights of the Holders of the Serviced Companion Loans........
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans..........................................
Section 10.2 Procedure Upon Termination of Trust..........................
Section 10.3 Additional REMIC Termination Requirements....................
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders..............................
Section 11.2 Access to List of Holders....................................
Section 11.3 Acts of Holders of Certificates..............................
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration.........................................
Section 12.2 Prohibited Transactions and Activities.......................
Section 12.3 Modifications of Mortgage Loans..............................
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status......................................................
Section 12.5 Grantor Trust Administration.................................
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness........................
Section 13.2 Certain Information to be Provided by the Master
Servicers, the Special Servicers, any Primary Servicer
and the Trustee.............................................
Section 13.3 Filing Obligations...........................................
Section 13.4 Form 10-D Filings............................................
Section 13.5 Form 10-K Filings............................................
Section 13.6 Xxxxxxxx-Xxxxx Certification.................................
Section 13.7 Form 8-K Filings.............................................
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports..........................
Section 13.9 Annual Compliance Statements.................................
Section 13.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 13.11 Annual Independent Public Accountants' Servicing Report......
Section 13.12 Exchange Act Reporting and Regulation AB Compliance
Indemnification.............................................
Section 13.13 Amendments...................................................
Section 13.14 Exchange Act Report Signatures; Article XIII Notices.........
Section 13.15 Termination of the Paying Agent and Sub-Servicers............
ARTICLE XIV
[RESERVED]
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 Binding Nature of Agreement..................................
Section 15.2 Entire Agreement.............................................
Section 15.3 Amendment....................................................
Section 15.4 GOVERNING LAW................................................
Section 15.5 Notices......................................................
Section 15.6 Severability of Provisions...................................
Section 15.7 Indulgences; No Waivers......................................
Section 15.8 Headings Not to Affect Interpretation........................
Section 15.9 Benefits of Agreement........................................
Section 15.10 Special Notices to the Rating Agencies.......................
Section 15.11 Counterparts.................................................
Section 15.12 Intention of Parties.........................................
Section 15.13 Recordation of Agreement.....................................
Section 15.14 Rating Agency Monitoring Fees................................
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-2 Certificate
EXHIBIT A-4 Form of Class A-3 Certificate
EXHIBIT A-5 Form of Class A-4 Certificate
EXHIBIT A-6 Form of Class A-M Certificate
EXHIBIT A-7 Form of Class A-MFL Certificate
EXHIBIT A-8 Form of Class A-MA Certificate
EXHIBIT A-9 Form of Class A-J Certificate
EXHIBIT A-10 Form of Class A-JFL Certificate
EXHIBIT A-11 Form of Class A-JA Certificate
EXHIBIT A-12 Form of Class B Certificate
EXHIBIT A-13 Form of Class C Certificate
EXHIBIT A-14 Form of Class D Certificate
EXHIBIT A-15 Form of Class E Certificate
EXHIBIT A-16 Form of Class F Certificate
EXHIBIT A-17 Form of Class G Certificate
EXHIBIT A-18 Form of Class H Certificate
EXHIBIT A-19 Form of Class J Certificate
EXHIBIT A-20 Form of Class K Certificate
EXHIBIT A-21 Form of Class L Certificate
EXHIBIT A-22 Form of Class M Certificate
EXHIBIT A-23 Form of Class N Certificate
EXHIBIT A-24 Form of Class O Certificate
EXHIBIT A-25 Form of Class P Certificate
EXHIBIT A-26 Form of Class Q Certificate
EXHIBIT A-27 Form of Class S Certificate
EXHIBIT A-28 Form of Class X-1 Certificate
EXHIBIT A-29 Form of Class X-2 Certificate
EXHIBIT A-30 Form of Class EI Certificate
EXHIBIT A-31 Form of Class R-I Certificate
EXHIBIT A-32 Form of Class R-II Certificate
EXHIBIT A-33 Form of Class R-III Certificate
EXHIBIT B-1 Form of Initial Certification of Custodian
(Section 2.2)
EXHIBIT B-2 Form of Final Certification of Custodian (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered
Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered
Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement for
Transfers of REMIC Residual Certificates
(Section 3.3(e))
EXHIBIT E-2 Form of Transferor Certificate for Transfers of REMIC
Residual Certificates (Section 3.3(e))
EXHIBIT F Form of Transferor Certificate for Transfers of
Regulation S Certificates
EXHIBIT G Form of Primary Servicing Agreement for Principal
Global Investors, LLC
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Clearstream Certificate
(Section 3.7(d))
EXHIBIT J List of Loans to Which Excess Servicing Fees Are Paid
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (MSMCH)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (GECC)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (PCFII)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (RBC)
EXHIBIT K-5 Form of Mortgage Loan Purchase Agreement V (NatCity)
EXHIBIT K-6 Form of Mortgage Loan Purchase Agreement VI (NCB, FSB)
EXHIBIT K-7 Form of Mortgage Loan Purchase Agreement VII
(Nationwide)
EXHIBIT L [Reserved]
EXHIBIT M Form of Monthly Certificateholders Report
(Section 5.4(a))
EXHIBIT N [Reserved]
EXHIBIT O [Reserved]
EXHIBIT P [Reserved]
EXHIBIT Q [Reserved]
EXHIBIT R Nationwide Primary Servicer Undertaking to Indemnify
EXHIBIT S-1A Form of Power of Attorney to Capmark Master Servicer
(Section 8.3(c))
EXHIBIT S-1B Form of Power of Attorney to Xxxxx Fargo Master
Servicer (Section 8.3(c))
EXHIBIT S-1C Form of Power of Attorney to NCB Master Servicer
(Section 8.3(c))
EXHIBIT S-2A Form of Power of Attorney to Co-op Special Servicer
(Section 9.4(a))
EXHIBIT S-2B Form of Power of Attorney to General Special Servicer
(Section 9.4(a))
EXHIBIT T Form of Subordination Agreement for NCB, FSB
Subordinate Debt
EXHIBIT U [Reserved]
EXHIBIT V [Reserved]
EXHIBIT W [Reserved]
EXHIBIT X [Reserved]
EXHIBIT Y Investor Certification (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification regarding Defeasance
of Mortgage Loan (Section 8.3(h))
EXHIBIT AA Additional Disclosure Notification
EXHIBIT BB-1 Form of Xxxxxxxx-Xxxxx Certification (Section 13.6)
EXHIBIT BB-2 Form of Master Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-3 Form of Special Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-4 Form of Trustee Performance Certification (Section
13.6)
EXHIBIT BB-5 Form of Paying Agent Performance Certification
(Section 13.6)
EXHIBIT BB-6 Form of Reporting Sub-Servicer Performance
Certification (Section 13.6)
EXHIBIT CC Centerline Naming Convention
SCHEDULE I MSMCH Loan Schedule
SCHEDULE II GECC Loan Schedule
SCHEDULE III PCFII Loan Schedule
SCHEDULE IV RBC Loan Schedule
SCHEDULE V NatCity Loan Schedule
SCHEDULE VI NCB, FSB Loan Schedule
SCHEDULE VI-2 Nationwide Loan Schedule
SCHEDULE VII List of Escrow Accounts Not Currently Eligible
Accounts (Section 8.3(e))
SCHEDULE VIII Certain Escrow Accounts for Which a Report Under
Section 5.1(g) is Required
SCHEDULE IX List of Mortgagors that are Third-Party Beneficiaries
Under Section 2.3(a)
SCHEDULE X [Reserved]
SCHEDULE XI Earn-Out Reserves
SCHEDULE XII List of Mortgage Loans for which a Scheduled Payment
is Due After the End of a Collection Period
SCHEDULE XIII List of Mortgage Loans that Permit Voluntary
Principal Prepayment Without Payment of a Full
Month's Interest
SCHEDULE XIV Rates Used in Determination of Class X Pass-Through
Rates
SCHEDULE XV [Reserved]
SCHEDULE XVI Relevant Servicing Criteria
SCHEDULE XVII Additional Form 10-D Disclosure
SCHEDULE XVIII Additional Form 10-K Disclosure
SCHEDULE XIX Form 8-K Disclosure Information
SCHEDULE XX Seller Sub-Servicers
THIS POOLING AND SERVICING AGREEMENT is dated as of November 1, 2007
(this "Agreement") among XXXXXX XXXXXXX CAPITAL I INC., a Delaware corporation,
as depositor (the "Depositor"), CAPMARK FINANCE INC., as a master servicer (the
"Capmark Master Servicer"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a master
servicer (the "Xxxxx Fargo Master Servicer"), NCB, FSB, as a master servicer
(the "NCB Master Servicer"), CENTERLINE SERVICING INC., as a special servicer
(the "General Special Servicer"), NATIONAL CONSUMER COOPERATIVE BANK, as a
special servicer (the "Co-op Special Servicer"), LASALLE BANK NATIONAL
ASSOCIATION, as trustee and custodian of the Trust (respectively, the "Trustee"
and "Custodian"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as paying agent,
authenticating agent and certificate registrar of the Trust (respectively, the
"Paying Agent," "Authenticating Agent" and "Certificate Registrar).
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC (successor to Xxxxxx Xxxxxxx
Mortgage Capital Inc.), as seller ("MSMCH"), Royal Bank of Canada, as seller
("RBC"), General Electric Capital Corporation, as seller ("GECC"), Principal
Commercial Funding II, LLC, as seller ("PCFII"), NCB, FSB, as seller ("NCB,
FSB"), Nationwide Life Insurance Company, as seller ("Nationwide") and National
City Bank, as seller ("NatCity"), and will be the owner of the Mortgage Loans
and the other property being conveyed by it to the Trustee for inclusion in the
Trust which is hereby created. On the Closing Date, the Depositor will acquire
(i) the REMIC I Regular Interests and the Class R-I Certificates as
consideration for its transfer to the Trust of the Mortgage Loans, other than
any Excess Interest payable thereon, and the other property constituting REMIC
I; (ii) the REMIC II Regular Interests and the Class R-II Certificates as
consideration for its transfer of the REMIC I Regular Interests to the Trust;
(iii) the REMIC Regular Certificates, the Floating Rate Regular Interests and
the Class R-III Certificates as consideration for its transfer of the REMIC II
Regular Interests to the Trust; (iv) the Floating Rate Certificates as
consideration for its transfer of the related Class of Floating Rate Regular
Interest and the related Swap Transaction to the Trust; and (v) the Class EI
Certificates as consideration for its transfer of the Excess Interest to the
Trust. The Depositor has duly authorized the execution and delivery of this
Agreement to provide for the foregoing and the issuance of (A) the REMIC I
Regular Interests and the Class R-I Certificates representing in the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests
and the Class R-II Certificates representing in the aggregate the entire
beneficial ownership of REMIC II, (C) the REMIC Regular Certificates, the
Floating Rate Regular Interests and the Class R-III Certificates representing in
the aggregate the entire beneficial ownership of REMIC III, (D) the Floating
Rate Certificates representing in the aggregate the entire beneficial ownership
of the related Floating Rate Grantor Trust and (E) the Class EI Certificates
representing in the aggregate the entire beneficial ownership of the Class EI
Grantor Trust.
Excess Interest received on the Mortgage Loans shall be held in the
Class EI Grantor Trust for the benefit of the Class EI Certificates. Each of the
Floating Rate Regular Interests, the related Swap Transaction, the related
Floating Rate Account and the related Master Servicer's Floating Rate Account
shall be held in the related Floating Rate Grantor Trust for the benefit of the
related Class of Floating Rate Certificates. All covenants and agreements made
by the Depositor and the Trustee herein with respect to the Mortgage Loans and
the other property constituting the Trust are for the benefit of the Holders of
the REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC Regular
Certificates, the Floating Rate Certificates, the Floating Rate Regular
Interests, the Swap Counterparty, the Class EI Certificates and the Residual
Certificates. The parties hereto are entering into this Agreement, and the
Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
will be offered for sale pursuant to the prospectus (the "Prospectus") dated
June 22, 2007, as supplemented by the free writing prospectus dated November 2,
2007 (together with the Prospectus, the "Preliminary Prospectus Supplement"),
and as further supplemented by the final prospectus supplement dated November
15, 2007 (together with the Prospectus, the "Final Prospectus Supplement") and
the 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
EI, Class X-1 and Class X-2 Certificates will be offered for sale pursuant to a
Private Placement Memorandum dated November 15, 2007.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest will have a pass-through rate equal to the REMIC I Net Mortgage
Rate of the related Mortgage Loan, an initial principal amount (the initial
"Certificate Balance") equal to the Scheduled Principal Balance as of the
Cut-Off Date of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest relates, and a latest possible maturity date equal to the Final Rated
Distribution Date (as defined herein). Excess Interest shall not be included as
an asset of REMIC I. The Class R-I Certificates will be designated as the sole
Class of residual interests in REMIC I and will have no Certificate Balance, no
Notional Amount and no Pass-Through Rate, but will be entitled to receive the
proceeds of any assets remaining in REMIC I after all Classes of REMIC I Regular
Interests have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances or Notional Amount set forth in the definition thereof. The
Class R-II Certificates will be designated as the sole Class of residual
interests in REMIC II and will have no Certificate Balance and no Pass-Through
Rate, but will be entitled to receive the proceeds of any assets remaining in
REMIC II after all Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class or Component designation,
the corresponding REMIC II Regular Interest (the "Corresponding REMIC II Regular
Interest"), the Corresponding Components of the Class X-1 or Class X-2
Certificates (the "Corresponding Components") and the Original Class REMIC II
Certificate Balance or Notional Balance for each Class of Principal Balance
Certificates or Floating Rate Regular Interests (the "Corresponding
Certificates").
Original Original
Class REMIC II Corresponding
Certificate Corresponding Certificate Components of
Balance or REMIC II Balance Class X-1 or
Corresponding Notional Regular or Notional Class X-2
Certificates Amount Interests (1) Amount Certificates (1)
------------- -------------- ------------- ------------ ----------------
Class A-1 $51,900,000 A-1-1 $3,924,000 A-1-1
A-1-2 $47,976,000 A-1-2
Class A-1A $314,528,000 A-1A-1 $409,000 A-1A-1
A-1A-2 $14,797,000 A-1A-2
A-1A-3 $15,698,000 A-1A-3
A-1A-4 $15,400,000 A-1A-4
A-1A-5 $95,864,000 A-1A-5
A-1A-6 $10,844,000 A-1A-6
A-1A-7 $26,703,000 A-1A-7
A-1A-8 $12,127,000 A-1A-8
A-1A-9 $122,686,000 A-1A-9
Class A-2 $91,100,000 A-2-1 $35,522,000 A-2-1
A-2-2 $55,578,000 A-2-2
Class A-3 $83,000,000 A-3-1 $31,654,000 A-3-1
A-3-2 $51,346,000 A-3-2
Class A-4 $1,276,553,000 A-4-1 $32,617,000 A-4-1
A-4-2 $168,510,000 A-4-2
A-4-3 $74,620,000 A-4-3
A-4-4 $72,400,000 A-4-4
A-4-5 $91,106,000 A-4-5
A-4-6 $837,300,000 A-4-6
Class A-M $194,651,000 A-M $194,651,000 A-M
Class A-MFL $20,000,000 A-MFL $20,000,000 A-MFL
Class A-MA $44,932,000 A-MA $44,932,000 A-MA
Class A-J $130,988,000 A-J $130,988,000 A-J
Class A-JFL $30,000,000 A-JFL $30,000,000 A-JFL
Class A-JA $33,699,000 A-JA $33,699,000 A-JA
Class B $19,469,000 B $19,469,000 B
Class C $25,958,000 C-1 $22,651,000 C-1
C-2 $3,307,000 C-2
Class D $16,224,000 D-1 $5,683,000 X-0
X-0 $10,541,000 D-2
Class E $38,938,000 E-1 $8,631,000 E-1
E-2 $30,307,000 E-2
Class F $12,979,000 F $12,979,000 F
Class G $35,693,000 G-1 $18,592,000 G-1
G-2 $17,101,000 G-2
Class H $25,958,000 H-1 $330,000 H-1
H-2 $25,628,000 H-2
Class J $25,958,000 J $25,958,000 J
Class K $32,448,000 K-1 $10,578,000 K-1
K-2 $21,870,000 K-2
Class L $9,735,000 L $9,735,000 L
Class M $9,734,000 M $9,734,000 M
Class N $9,734,000 N $9,734,000 N
Class O $16,224,000 O $16,224,000 O
Class P $6,490,000 P $6,490,000 P
Class Q $9,734,000 Q $9,734,000 Q
Class S $29,203,781 S $29,203,781 S
------------------
(1) The REMIC II Regular Interests and the Components of the Class X-1 and
Class X-2 Certificates that correspond to any particular Class of
Principal Balance Certificates and Floating Rate Regular Interest also
correspond to each other and, accordingly, constitute the "Corresponding
REMIC II Regular Interests" and the "Corresponding Components,"
respectively, with respect to each other.
(2) The REMIC II Regular Interest A-MFL corresponds to the Class A-MFL Regular
Interest, having an initial Certificate Balance of $20,000,000. The REMIC
II Regular Interest A-JFL corresponds to the Class A-JFL Regular Interest,
having an initial Certificate Balance of $30,000,000.
REMIC III
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC Regular Certificates (or, in
the case of a Class of Floating Rate Certificates, the related Floating Rate
Regular Interest represented thereby) comprising the interests in REMIC III
created hereunder.
Approximate Initial Aggregate
REMIC Regular Initial Certificate Final Scheduled
Certificate Pass-Through Balance Distribution
Designation Rate(1) or Notional Amount Date(2)
---------------------- --------------- --------------------- ----------------
Class A-1 5.320% $51,900,000 07/12/2012
Class A-1A 5.688% $314,528,000 09/12/2017
Class A-2 5.623% $91,100,000 09/12/2012
Class A-3 5.852% $83,000,000 12/12/2016
Class A-4 5.809% $1,276,533,000 10/12/2017
Class A-M 6.111% $194,651,000 11/12/2017
Class A-MFL(3) LIBOR + 1.130% $20,000,000 11/12/2017
Class A-MA 6.107% $44,932,000 11/12/2017
Class A-J 6.153% $130,988,000 11/12/2017
Class A-JFL(3) LIBOR + 1.450% $30,000,000 11/12/2017
Class A-JA 6.153% $33,699,000 11/12/2017
Class B 6.153% $19,469,000 11/12/2017
Class C 6.153% $25,958,000 11/12/2017
Class D 6.153% $16,224,000 11/12/2017
Class E 6.153% $38,938,000 12/12/2017
Class F 6.153% $12,979,000 12/12/2017
Class G 6.153% $35,693,000 12/12/2017
Class H 6.153% $25,958,000 12/12/2017
Class J 6.153% $25,958,000 12/12/2017
Class K 6.153% $32,448,000 12/12/2017
Class L 4.652% $9,735,000 12/12/2017
Class M 4.652% $9,734,000 12/12/2017
Class N 4.652% $9,734,000 12/12/2017
Class O 4.652% $16,224,000 12/12/2017
Class P 4.652% $6,490,000 12/12/2017
Class Q 4.652% $9,734,000 12/12/2017
Class S 4.652% $29,203,781 01/12/2018
Class X-1 0.061% $2,595,830,781 N/A
Class X-2 0.273% $2,529,846,000 N/A
Class R-III(4) N/A N/A N/A
------------------
(1) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(2) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments)
will be made on the Mortgage Loans in accordance with their terms (except
that each ARD Loan will be prepaid in full on its Anticipated Repayment
Date) in the case of the REMIC Regular Certificates.
(3) Each of the Class A-MFL and Class A-JFL Certificates are not regular
interests in a REMIC but represent ownership of the beneficial interests
in the related Floating Rate Grantor Trust, which is comprised of (i) the
related Floating Rate Regular Interest and the related Swap Transaction
and all payments under the related Floating Rate Regular Interest and the
related Swap Transaction, (ii) all funds and assets on deposit from time
to time in the related Floating Rate Account and (iii) proceeds of all of
the foregoing. The parties intend that the portion of the Trust
representing each Floating Rate Grantor Trust shall be treated as a
grantor trust under subpart E of Part 1 of subchapter J of Chapter 1 of
Subtitle A of the Code.
(4) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all REMIC
Regular Certificates and the Floating Rate Regular Interests have been
reduced to zero and any Realized Losses previously allocated thereto (and
any interest thereon) have been reimbursed.
Class EI Grantor Trust
Each Class EI Certificate will be entitled to Excess Interest (which
will not be a part of any REMIC Pool). The parties intend that (i) the portions
of the Trust representing the Excess Interest and the Excess Interest
Sub-account (such portion of the Trust, the "Class EI Grantor Trust") shall be
treated as a grantor trust under subpart E of Part 1 of subchapter J of Chapter
1 of Subtitle A of the Code and (ii) the Class EI Certificates shall represent
pro rata undivided beneficial interests in the portion of the Trust consisting
of the entitlement to receive Excess Interest.
Class A-MFL Grantor Trust
The parties intend that (i) the portions of the Trust consisting of
the segregated pool of assets consisting of the Class A-MFL Regular Interest,
the related Swap Transaction, the Class A-MFL Floating Rate Account and the
Class A-MFL Master Servicer's Floating Rate Account (such portion of the Trust,
the "Class A-MFL Grantor Trust") will be treated as a separate grantor trust
under subpart E of Part 1 of subchapter J of Chapter 1 of Subtitle A of the Code
and (ii) the Class A-MFL Certificates shall represent pro rata undivided
beneficial interests in the Class A-MFL Grantor Trust.
Class A-JFL Grantor Trust
The parties intend that (i) the portions of the Trust consisting of
the segregated pool of assets consisting of the Class A-JFL Regular Interest,
the related Swap Transaction, the Class A-JFL Floating Rate Account and the
Class A-JFL Master Servicer's Floating Rate Account (such portion of the Trust,
the "Class A-JFL Grantor Trust") will be treated as a separate grantor trust
under subpart E of Part 1 of subchapter J of Chapter 1 of Subtitle A of the Code
and (ii) the Class A-JFL Certificates shall represent pro rata undivided
beneficial interests in the Class A-JFL Grantor Trust.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $2,595,830,782.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans other than the Excess Interest payable with respect to such
Mortgage Loans) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC Regular
Certificates and the Floating Rate Regular Interests will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates will be
designated as the sole Class of "residual interests" in REMIC III for purposes
of the REMIC Provisions.
ARTICLE I
DEFINITIONS
Section 1.1.Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Accountant" means a Person engaged in the practice of accounting
who is Independent.
"Accrued Certificate Interest" means, with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
interest accrued during the Interest Accrual Period relating to such
Distribution Date on the Aggregate Certificate Balance of such Class or Interest
as of the close of business on the immediately preceding Distribution Date at
the respective rates per annum set forth in the definition of the applicable
Pass-Through Rate for each such Class. Accrued Certificate Interest on the Class
X-1 and Class X-2 Certificates for each Distribution Date will equal the Accrued
Component Interest for the related Interest Accrual Period for all of their
respective Components for such Distribution Date.
"Accrued Component Interest" With respect to each Component of the
Class X-1 and Class X-2 Certificates for any Distribution Date, one month's
interest at the Class X-1 Strip Rate or Class X-2 Strip Rate applicable to such
Component for such Distribution Date, accrued on the Component Notional Amount
of such Component outstanding immediately prior to such Distribution Date.
Accrued Component Interest shall be calculated on a 30/360 basis and, with
respect to any Component and any Distribution Date, shall be deemed to accrue
during the calendar month preceding the month in which such Distribution Date
occurs.
"Acquisition Date" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of each Mortgaged Property securing any Loan Group).
"Additional Disclosure Notification" means 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 AA.
"Additional Form 10-D Disclosure" has the meaning set forth in
Section 13.4.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section 13.5.
"Additional Servicer" means each Affiliate of the Master Servicers,
MSMCH, GECC, PCFII, RBC, NCB, FSB, Nationwide, NatCity, the Trustee, the Paying
Agent or the Depositor that Services any of the Mortgage Loans and each Person,
other than the Special Servicers, who is not an Affiliate of the Master
Servicers, MSMCH, GECC, PCFII, RBC, NCB, FSB, Nationwide, NatCity, the Trustee,
the Paying Agent or the Depositor, and who Services 10% or more of the Mortgage
Loans (based on their Principal Balance). For clarification purposes, the Paying
Agent is an Additional Servicer.
"Additional Trust Expense" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees, (ii) Advance
Interest that cannot be paid from Late Fees and default interest in accordance
with Section 4.6(c), (iii) amounts paid to indemnify the Master Servicers, the
Special Servicers, any Primary Servicer, any Other Master Servicer, any Other
Special Servicer, any Other Trustee, any Other Paying Agent, the Certificate
Registrar, the Trustee, the Paying Agent (or any other Person) pursuant to the
terms of this Agreement, (iv) to the extent not otherwise paid, any federal,
state, or local taxes imposed on the Trust or its assets and paid from amounts
on deposit in the Certificate Accounts or Distribution Account, (v) the amount
of any Advance plus interest due thereon and Unliquidated Advances that are not
recovered from the proceeds of a Mortgage Loan or Loan Group upon a Final
Recovery Determination, (vi) to the extent not included in the calculation of a
Realized Loss and not covered by indemnification by one of the parties hereto or
otherwise, any other unanticipated cost, liability, or expense (or portion
thereof) of the Trust (including costs of collecting such amounts or other
Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the applicable Master Servicer (or the applicable Special Servicer,
in the case of a Specially Serviced Mortgage Loan) will not, recover from the
related Mortgagor or Mortgaged Property or otherwise, including a Modification
Loss described in clause (ii) of the definition thereof, and (vii) with respect
to a Non-Trust Serviced Pari Passu Loan, the pro rata portion of any fees, costs
and expenses that relate directly to the servicing of the related Non-Trust
Serviced Loan Group and as to which the related Other Master Servicer, the
related Other Special Servicer or the related Other Trustee (in respect of the
servicing advances made by it for such Non-Trust Serviced Loan Group and
excluding the trustee fee and costs and expenses related to REMIC or the trust
fund in accordance with the related Other Pooling and Servicing Agreement) are
entitled to reimbursement pursuant to the related Other Pooling and Servicing
Agreement, that is allocable to such Non-Trust Serviced Pari Passu Loan pursuant
to the related Intercreditor Agreement, to the extent that such amounts are not
payable out of proceeds on such Non-Trust Serviced Pari Passu Loan; provided,
however, that in the case of each Whole Loan, "Additional Trust Expense" shall
not include any of the foregoing amounts that have been recovered from the
related Mortgagor or Mortgaged Property. Notwithstanding anything in this
Agreement to the contrary, "Additional Trust Expenses" shall not include
allocable overhead of a Master Servicer, a Special Servicer, any Other Master
Servicer, any Other Special Servicer, any Other Trustee, an Other Paying Agent,
the Trustee, the Paying Agent or the Certificate Registrar such as costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses, and similar internal costs and expenses, except to the
extent specifically allowed in this Agreement. No Additional Trust Expense
consisting of any REMIC specific taxes payable in respect of the Mortgage Loans
or out of pocket expenses incurred by the Trust that are allocable to the
Mortgage Loans and that result from the inclusion of the Mortgage Loans in a
REMIC shall be allocated to the Serviced Companion Loans.
"Adjusted Mortgage Rate" means, with respect to any Mortgage Loan
that accrues interest on the basis of a 360-day year consisting of twelve 30-day
months ("30/360 basis"), and with respect to any Distribution Date, the Mortgage
Rate thereof minus the Administrative Cost Rate. For any Mortgage Loan that
accrue(s) interest on a basis other than that of a 30/360 basis and with respect
to any Distribution Date, the rate that, when applied to the Principal Balance
of the related Mortgage Loan (on the day prior to the Due Date preceding such
Distribution Date) on a 30/360 basis for the related loan accrual period, yields
the amount of interest actually due on such Mortgage Loan on the Due Date
preceding such Distribution Date (less the Administrative Cost Rate for such
Mortgage Loan); provided that for purposes of this definition, (i) the Adjusted
Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year (in either case, unless the related Distribution Date
is the Final Distribution Date), shall be determined net of any amounts
transferred to the Interest Reserve Account and (ii) the Adjusted Mortgage Rate
for the loan accrual period relating to the Due Date in March (commencing in
March 2008) (or February if the related Distribution Date is the Final
Distribution Date) shall be determined taking into account the addition of any
amounts withdrawn from the Interest Reserve Account, provided, further, that if
the Maturity Date on any Mortgage Loan occurs on the Due Date in January or
February or if there is a Principal Prepayment on any Mortgage Loan on the Due
Date in January or February, then the Adjusted Mortgage Rate shall be determined
taking into account the addition of any amounts withdrawn from the Interest
Reserve Account for such month.
"Administrative Cost Rate" means the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee Rate and the
Trustee Fee Rate and, in the case of a Non-Trust Serviced Pari Passu Loan, the
applicable Pari Passu Loan Servicing Fee Rate; provided, that, in the case of a
Non-Trust Serviced Pari Passu Loan, the Administrative Cost Rate shall be equal
to the sum of the applicable Pari Passu Loan Servicing Fee Rate and the Trustee
Fee Rate.
"Advance" means either a P&I Advance or a Servicing Advance.
"Advance Interest" means interest payable to a Master Servicer, a
Special Servicer or the Trustee on outstanding Advances (other than Unliquidated
Advances) pursuant to Section 4.5 of this Agreement and any interest payable to
the related Other Master Servicer or the related Other Trustee, with respect to
the Pari Passu Loan Nonrecoverable Servicing Advances pursuant to Section 4.4(b)
hereof.
"Advance Rate" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or, if no longer so published, such other publication as determined by the
Trustee in its reasonable discretion.
"Adverse Grantor Trust Event" shall mean any action taken by a
Person or the failure of a Person to take any action that, under the Grantor
Trust Provisions, if taken or not taken, as the case may be, could endanger the
status of the Class EI Grantor Trust or either Floating Rate Grantor Trust as a
grantor trust under the Grantor Trust Provisions or result in the imposition of
a tax upon the Class EI Grantor Trust or either Floating Rate Grantor Trust or
any of their respective assets or transactions.
"Adverse REMIC Event" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(f),
result in the imposition of a tax upon the income of any REMIC Pool or any of
their respective assets or transactions, including (without limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code.
"Affiliate" means, 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.
"Aggregate Certificate Balance" means the aggregate of the
Certificate Balances of the Principal Balance Certificates, the REMIC I Regular
Interests, the REMIC II Regular Interests or, collectively, the REMIC Regular
Certificates and the Floating Rate Regular Interests, as the case may be, at any
date of determination. With respect to a Class of Principal Balance
Certificates, REMIC I Regular Interests or REMIC II Regular Interests, Aggregate
Certificate Balance shall mean the aggregate of the Certificate Balances of all
Certificates or Interests, as the case may be, of that Class at any date of
determination.
"Aggregate Principal Balance" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"Agreement" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"Anticipated Repayment Date" means, with respect to the ARD Loans,
the date on which a substantial principal payment on an ARD Loan is anticipated
to be made, as set forth in the related Mortgage Note.
"Appraisal" means an appraisal by an Independent state certified MAI
appraiser having at least five years' experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"Appraisal Event" means, with respect to any Mortgage Loan (other
than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group), not later
than the earliest of (i) the date 120 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan (or Serviced Loan
Group, as the case may be) if such delinquency remains uncured, (ii) the date 30
days after receipt of notice that the related Mortgagor has filed a bankruptcy
petition or the related Mortgagor has become the subject of involuntary
bankruptcy proceedings or the related Mortgagor has consented to the filing of a
bankruptcy proceeding against it or a receiver is appointed in respect of the
related Mortgaged Property, provided such petition or appointment is still in
effect, (iii) the date that is 30 days following the date the related Mortgaged
Property becomes an REO Property and (iv) the effective date of any modification
to a Money Term of such Mortgage Loan (or Serviced Loan Group, as the case may
be), other than an extension of the date that a Balloon Payment is due for a
period of less than six months from the original due date of such Balloon
Payment and, with respect to a Non-Trust Serviced Pari Passu Loan, an "appraisal
event" or similar term as determined pursuant to the related Other Pooling and
Servicing Agreement.
"Appraisal Reduction" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan (or Serviced Loan Group, as the case may
be) (or, in the case of an REO Property, the related REO Mortgage Loan) less the
undrawn principal amount of any letter of credit or debt service reserve, if
applicable, that is then securing such Mortgage Loan, (ii) to the extent not
previously advanced by the applicable Master Servicer or the Trustee, all
accrued and unpaid interest on such Mortgage Loan (or Serviced Loan Group, as
the case may be) (or, in the case of an REO Property, the related REO Mortgage
Loan), at a per annum rate equal to the Mortgage Rate, (iii) all unreimbursed
Advances (including Unliquidated Advances) and interest on Advances (other than
Unliquidated Advances) at the Advance Rate with respect to such Mortgage Loan
(or Serviced Loan Group, as the case may be) (or, in the case of an REO
Property, the related REO Mortgage Loan) and (iv) to the extent funds on deposit
in any applicable Escrow Accounts are not sufficient therefor, and to the extent
not previously advanced by the applicable Master Servicer, the applicable
Special Servicer or the Trustee, all currently due and unpaid real estate taxes
and assessments, insurance premiums and, if applicable, ground rents and other
amounts which were required to be deposited in any Escrow Account (but were not
deposited) in respect of such Mortgaged Property or REO Property, as the case
may be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of
such Mortgaged Property or REO Property as determined by such Appraisal or
internal valuation, as the case may be, plus the full amount of any escrows held
by or on behalf of the Trustee as security for the Mortgage Loan (or Serviced
Loan Group, as the case may be) (less the estimated amount of the obligations
anticipated to be payable in the next twelve months to which such escrows
relate). With respect to each Mortgage Loan that is cross-collateralized with
any other Mortgage Loan, the value of each Mortgaged Property that is security
for each Mortgage Loan in such cross-collateralized group, as well as the
outstanding amounts under each such Mortgage Loan shall be taken into account
when calculating such Appraisal Reduction. Notwithstanding the above, for
purposes of this definition, if a Mortgage Loan is secured by more than one
Mortgaged Property, the Scheduled Principal Balance of that Mortgage Loan shall
not include any amounts relating to a Mortgaged Property that has been defeased.
Each Appraisal or internal valuation for a Required Appraisal Loan shall be
updated annually, for so long as an Appraisal Reduction exists, from the date of
such Appraisal or internal valuation, and each Appraisal (as defined in the
related Other Pooling and Servicing Agreement) or internal valuation of a
Non-Trust Serviced Pari Passu Loan shall be updated as set forth in the related
Other Pooling and Servicing Agreement. In addition, the Operating Adviser may at
any time (including, without limitation, any time following a request by the
holder of a Serviced Companion Loan or Operating Adviser on its behalf, to
advise if there has been a determination that such holder is no longer the
Directing Holder under the related Co-Lender Agreement) request the applicable
Special Servicer to obtain (at the Operating Adviser's expense) an updated
Appraisal, with a corresponding adjustment to the amount of the Appraisal
Reduction. The Appraisal Reduction for each Required Appraisal Loan will be
recalculated based on subsequent Appraisals, internal valuations or updates. Any
Appraisal Reduction for any Mortgage Loan (or Serviced Loan Group) shall be
reduced to reflect any Realized Principal Losses on the Required Appraisal Loan.
Each Appraisal Reduction will be reduced to zero as of the date the related
Mortgage Loan (or Serviced Loan Group, as the case may be) is brought current
under the then current terms of the Mortgage Loan for at least three consecutive
months, and no Appraisal Reduction will exist as to any Mortgage Loan (or
Serviced Loan Group, as the case may be) after it has been paid in full,
liquidated, repurchased or otherwise disposed of. In the case of a Serviced Loan
Group, any Appraisal Reduction calculated therefor shall be allocated (i) in the
case that the related Serviced Companion Loans are Pari Passu Loans, to the
related Senior Mortgage Loan and the Serviced Companion Loans, on a pari passu
basis, based on their respective outstanding principal balances and (ii) in the
case that the related Serviced Companion Loan is a Subordinate Loan, then first,
to such Subordinate Loan up to its outstanding principal balance and then, to
the related Senior Mortgage Loan; provided that if there are more than one
Subordinate Loans, an Appraisal Reduction shall be allocated to such Subordinate
Loans in reverse order of priority (i.e., first to the most subordinate note and
then to the next subordinate note, etc.). Any Appraisal Reduction in respect of
a Non-Trust Serviced Pari Passu Loan shall be calculated by the related Other
Master Servicer in accordance with and pursuant to the terms of the related
Other Pooling and Servicing Agreement.
"Appraised Value" means (i) with respect to any Mortgaged Property
(other than the Mortgaged Property securing a Co-op Mortgage Loan or a Non-Trust
Serviced Pari Passu Loan), the appraised value thereof determined by an
Appraisal of the Mortgaged Property securing such Mortgage Loan made by an
Independent appraiser selected by the applicable Master Servicer or the General
Special Servicer, as applicable or, in the case of an internal valuation
performed by the applicable Special Servicer pursuant to Section 6.9, the value
of the Mortgaged Property determined by such internal valuation, and (ii) with
respect to each Mortgaged Property securing a Co-op Mortgage Loan, the appraised
value thereof determined by an Appraisal of the Mortgaged Property securing such
Co-op Mortgage Loan made by an Independent appraiser selected by the NCB Master
Servicer or the Co-op Special Servicer, as applicable, or in the case of an
internal valuation performed by the Co-op Special Servicer pursuant to Section
6.9, the value of the Mortgaged Property determined by such internal valuation,
each determined as if such property were operated as a cooperatively-owned
multifamily residential building (generally equaling the gross sellout value of
all cooperative units in such residential cooperative property (applying a
discount as determined by the appraiser for rent regulated and rent controlled
units) plus the amount of the underlying debt encumbering such residential
cooperative property).
"ARD Loans" means the Mortgage Loans designated on the Mortgage Loan
Schedule as such.
"Assignment of Leases" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"Assumed Scheduled Payment" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not
been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Scheduled Payment that would have been due in respect of such Mortgage Loan
on such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the applicable Master Servicer or the applicable Special
Servicer pursuant to the terms hereof) and (ii) with respect to any REO Mortgage
Loan for any Due Date therefor as of which the related REO Property remains part
of the Trust, the scheduled monthly payment of principal and interest deemed to
be due in respect thereof on such Due Date equal to the Scheduled Payment (or,
in the case of a Balloon Mortgage Loan described in the preceding clause of this
definition, the Assumed Scheduled Payment) that was due in respect of the
related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage
Loan.
"Authenticating Agent" means any authenticating agent serving in
such capacity pursuant to Section 7.10.
"Authorized Officer" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"Available Advance Reimbursement Amount" has the meaning set forth
in Section 4.6(a) hereof.
"Available Distribution Amount" means, with respect to any
Distribution Date and the Mortgage Loans, an amount equal to the aggregate of
the following amounts (a) all amounts on deposit in the Distribution Account as
of the commencement of business on such Distribution Date that represent
payments and other collections on or in respect of the Mortgage Loans and any
REO Properties that were (x) received by a Master Servicer or a Special Servicer
through the end of the related Collection Period (other than any portion thereof
that constituted a portion of the Available Distribution Amount for a prior
Distribution Date as described in clause (a)(y) below) or (y) remitted by the
applicable Master Servicer on the related Master Servicer Remittance Date
pursuant to Section 5.1(h), exclusive of (i) any such amounts that were
deposited in the Distribution Account in error, (ii) amounts that are payable or
reimbursable to any Person other than the Certificateholders (including amounts
payable to the Master Servicers in respect of unpaid Master Servicing Fees, the
Primary Servicers in respect of unpaid Primary Servicing Fees, the Special
Servicers in respect of unpaid Special Servicer Compensation, the Trustee and
the Paying Agent in respect of unpaid Trustee Fees or to the parties entitled
thereto in respect of the unpaid Excess Servicing Fees), (iii) amounts that
constitute Prepayment Premiums or Yield Maintenance Charges, (iv) if such
Distribution Date occurs during January, other than in a leap year, or February
of any year (unless the related Distribution Date is the final Distribution
Date), the Interest Reserve Amounts with respect to Interest Reserve Loans
deposited in the Interest Reserve Account, (v) Excess Interest, (vi) in the case
of each REO Property related to a Serviced Loan Group, all amounts received with
respect to such Serviced Loan Group that are required to be paid to the holder
of the related Serviced Companion Loan, pursuant to the terms of the related
Co-Lender Agreement (which amounts will be deposited into the Serviced Companion
Loan Custodial Account pursuant to Section 5.1(c) and withdrawn from such
account pursuant to Section 5.2(a)) and (vii) Scheduled Payments collected but
due on a Due Date subsequent to the related Collection Period (other than any
portion thereof described in clause (a)(y) above) and (b) if and to the extent
not already among the amounts described in clause (a), (i) the aggregate amount
of any P&I Advances made by a Master Servicer or the Trustee for such
Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate
amount of any Compensating Interest payments made by the Master Servicers for
such Distribution Date pursuant to the terms hereof, and (iii) if a Distribution
Date occurs in March of any year, commencing March 2008 (or February if the
related Distribution Date is the final Distribution Date) or if a Maturity Date
or Principal Prepayment falls on a January or February of any year, the
aggregate of the Interest Reserve Amounts then held on deposit in the Interest
Reserve Account in respect of the related Interest Reserve Loan or Interest
Reserve Loans. For purposes of the definition of "Available Distribution
Amount," the Scheduled Payments and Principal Prepayments referred to in the
proviso in Section 5.2(b) shall be deemed to have been collected in the prior
Collection Period.
"Balloon Mortgage Loan" means a Mortgage Loan (or Serviced Loan
Group, as applicable) that provides for Scheduled Payments based on an
amortization schedule that is significantly longer than its term to maturity and
that is expected to have a remaining principal balance equal to or greater than
5% of its original principal balance as of its stated maturity date, unless
prepaid prior thereto.
"Balloon Payment" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"Banking Day" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England.
"Bankruptcy Loss" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"Base Interest Fraction" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium or Yield Maintenance Charge, and with respect to any Class of
Certificates (other than the Floating Rate Certificates) or Floating Rate
Regular Interest, a fraction (A) whose numerator is the greater of (x) zero and
(y) the difference between (i) the Pass-Through Rate on that Class of
Certificates (other than the Floating Rate Certificates) or Floating Rate
Regular Interest and (ii) the Discount Rate used in calculating the Prepayment
Premium or Yield Maintenance Charge with respect to the Principal Prepayment (or
the current Discount Rate if not used in such calculation) and (B) whose
denominator is the difference between (i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Discount Rate used in calculating the Prepayment
Premium or Yield Maintenance Charge with respect to that Principal Prepayment
(or the current Discount Rate if not used in such calculation), provided,
however, that under no circumstances will the Base Interest Fraction be greater
than one. If the Discount Rate referred to above is greater than or equal to the
Mortgage Rate on the related Mortgage Loan, then the Base Interest Fraction
shall equal zero; provided, however, that if the Discount Rate referred to above
is greater than or equal to the Mortgage Rate on the related Mortgage Loan, but
is less than the Pass-Through Rate on that Class of Certificates or Floating
Rate Regular Interest, then the Base Interest Fraction shall be equal to 1.0.
"Book-Entry Certificates" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions in the states where the Certificate Account,
Distribution Account, Trustee, Paying Agent, Custodian, a Master Servicer, a
Primary Servicer or a Special Servicer are located and are authorized or
obligated by law or executive order to remain closed. Upon the request of any
party to this Agreement or the Operating Adviser, the Trustee, the Paying Agent,
the Custodian, each Master Servicer, each Special Servicer and each Primary
Servicer shall provide such party a list of the legal holidays observed by such
entity; provided that each Primary Servicer shall be required to provide the
Operating Adviser and the Master Servicers on or before the first day of January
of each calendar year with a list of each day that will not be a "Business Day"
in the jurisdiction of such Primary Servicer during such calendar year.
"Capmark Master Servicer" means Capmark Finance Inc., and its
permitted successors or assigns.
"Cash Liquidation" means, as to any Defaulted Mortgage Loan other
than a Mortgage Loan with respect to which the related Mortgaged Property became
REO Property, the sale of such Defaulted Mortgage Loan. Each Master Servicer
shall maintain records in accordance with the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans, based on the written reports with
respect to such Cash Liquidation delivered by the applicable Special Servicer to
the applicable Master Servicer), of each Cash Liquidation.
"Category 1 Requests" has the meaning set forth in the Primary
Servicing Agreements for the PCFII Loans.
"Centerline Naming Convention" means the naming convention for
electronic file delivery set forth on Exhibit CC hereto.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"Certificate Account" means one or more separate accounts
established and maintained by each Master Servicer (or any Sub-Servicer or
Primary Servicer on behalf of the applicable Master Servicer) pursuant to
Section 5.1(a), each of which shall be an Eligible Account.
"Certificate Balance" means, with respect to any Certificate (other
than the Class X Certificates, the Class EI Certificates and the Residual
Certificates) or Interest as of any Distribution Date, the maximum specified
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the initial principal amount set forth on
the face of such Certificate (in the case of a Certificate), or as ascribed
thereto in the Preliminary Statement hereto (in the case of an Interest), minus
(A)(i) the amount of all principal distributions previously made with respect to
such Certificate pursuant to Section 6.5(a) or deemed to have been made with
respect to such Interest pursuant to Section 6.2(a) or Section 6.3(a), as the
case may be and (ii) all Realized Losses allocated or deemed to have been
allocated to such Interest or Certificate pursuant to Section 6.6, plus (B) an
amount equal to the amounts identified in clause (I)(C) of the definition of
Principal Distribution Amount, such increases to be allocated to the Principal
Balance Certificates or Interests in sequential order (i.e., to the most senior
Class first), in each case up to the amount of Realized Losses previously
allocated thereto and not otherwise reimbursed hereunder.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Register" has the meaning provided in Section 3.2.
"Certificate Registrar" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"Certificateholders" has the meaning provided in the definition of
"Holder." When used in combination with the name of a Certificate (e.g., REMIC
Regular Certificateholder and Residual Certificateholder), it shall mean a
Holder of such Certificate.
"Certificates" means, collectively, the REMIC Regular Certificates,
the Floating Rate Certificates, the Class EI Certificates, the Class R-I
Certificates, the Class R-II Certificates and the Class R-III Certificates.
"Certification Parties" has the meaning set forth in Section 13.6.
"Certifying Person" has the meaning set forth in Section 13.6.
"Class" means, with respect to the REMIC I Regular Interests, REMIC
II Regular Interests, REMIC Regular Certificates, Floating Rate Certificates,
Floating Rate Regular Interests and Class EI Certificates, any class of such
Certificates or Interests.
"Class A Senior Certificates" means the Class A-1 Certificates,
Class A-1A Certificates, Class A-2 Certificates, Class A-3 Certificates and
Class A-4 Certificates, collectively.
"Class A-1 Certificates," "Class A-1A Certificates," "Class A-2
Certificates," "Class A-3 Certificates," "Class A-4 Certificates," "Class A-M
Certificates," "Class A-MFL Certificates," "Class A-MA Certificates," "Class A-J
Certificates," "Class A-JFL Certificates," "Class A-JA Certificates," "Class X-1
Certificates," "Class X-2 Certificates," "Class B Certificates," "Class C
Certificates," "Class D Certificates," "Class E Certificates," "Class F
Certificates," "Class G Certificates," "Class H Certificates," "Class J
Certificates," "Class K Certificates," "Class L Certificates," "Class M
Certificates," "Class N Certificates," "Class O Certificates," "Class P
Certificates," "Class Q Certificates," "Class S Certificates," "Class EI
Certificates," "Class R-I Certificates," "Class R-II Certificates," or "Class
R-III Certificates" mean the Certificates designated as "Class A-1," "Class
A-1A," "Class A-2," "Class A-3," "Class X-0," "Xxxxx X-X," "Class A-MFL," "Class
A-MA," "Class A-J," "Class A-JFL," "Class A-JA," "Class X-1," "Class X-2,"
"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 EI," "Class R-I," "Class R-II" and "Class R-III,"
respectively, on the face thereof, in substantially the form attached hereto as
Exhibits A-1 through A-33.
"Class A-1-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1-1.
"Class A-1-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1-2.
"Class A-1A-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-1.
"Class A-1A-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-2.
"Class A-1A-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-3.
"Class A-1A-4 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-4.
"Class A-1A-5 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-5.
"Class A-1A-6 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-6.
"Class A-1A-7 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-7.
"Class A-1A-8 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-8.
"Class A-1A-9 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-9.
"Class A-2-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2-1.
"Class A-2-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2-2.
"Class A-3-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-3 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-3-1.
"Class A-3-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-3 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-3-2.
"Class A-4-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-1.
"Class A-4-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-2.
"Class A-4-3 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-3.
"Class A-4-4 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-4.
"Class A-4-5 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-5.
"Class A-4-6 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-6.
"Class A-J Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-J Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-J.
"Class A-JA Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-JA Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-JA.
"Class A-JFL Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-JFL Regular Interest, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-JFL.
"Class A-JFL Floating Rate Account" means the Eligible Account or
Accounts established and maintained by the Paying Agent and the Capmark Master
Servicer on behalf of the Trustee with respect to the Class A-JFL Certificates,
which shall be entitled "Xxxxx Fargo Bank, National Association, as Paying
Agent, on behalf of LaSalle Bank National Association, as Trustee, in trust for
Holders of Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16, Floating Rate Account,
Class A-JFL" and "Capmark Finance Inc., as Capmark Master Servicer for LaSalle
Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital
I Trust 2007-IQ16, Floating Rate Account, Class A-JFL," respectively; provided,
that a Floating Rate Account may be a subaccount of the Distribution Account or
the Certificate Account. The Class A-JFL Floating Rate Account shall be an asset
of the Class A-JFL Floating Rate Grantor Trust.
"Class A-JFL Grantor Trust" means the segregated pool of assets
consisting of (i) the Class A-JFL Regular Interest and the related Swap
Transaction and all payments under the Class A-JFL Regular Interest and the
related Swap Transaction, (ii) all funds and assets from time to time on deposit
in the related Floating Rate Account and the related Master Servicer's Floating
Rate Account and (iii) proceeds of all of the foregoing.
"Class A-JFL Master Servicer's Floating Rate Account" means the
Master Servicer's Floating Rate Account established and maintained by the
Capmark Master Servicer pursuant to Section 5.3(c) for the Class A-JFL
Certificates.
"Class A-JFL Regular Interest" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-JFL Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate per annum.
"Class A-M Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-M Regular Interest, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-M.
"Class A-MA Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-MA Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-MA.
"Class A-MFL Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-MFL Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-MFL.
"Class A-MFL Floating Rate Account" means the Eligible Account or
Accounts established and maintained by the Paying Agent and the Capmark Master
Servicer on behalf of the Trustee with respect to the Class A-MFL Certificates,
which shall be entitled "Xxxxx Fargo Bank, National Association, as Paying
Agent, on behalf of LaSalle Bank National Association, as Trustee, in trust for
Holders of Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16, Floating Rate Account,
Class A-MFL" and "Capmark Finance Inc., as Capmark Master Servicer for LaSalle
Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital
I Trust 2007-IQ16, Floating Rate Account, Class A-MFL," respectively; provided,
that a Floating Rate Account may be a subaccount of the Distribution Account or
the Certificate Account. The Class A-MFL Floating Rate Account shall be an asset
of the Class A-MFL Floating Rate Grantor Trust.
"Class A-MFL Grantor Trust" means the segregated pool of assets
consisting of (i) the Class A-MFL Regular Interest and the related Swap
Transaction and all payments under the Class A-MFL Regular Interest and the
related Swap Transaction, (ii) all funds and assets from time to time on deposit
in the related Floating Rate Account and the related Master Servicer's Floating
Rate Account and (iii) proceeds of all of the foregoing.
"Class A-MFL Master Servicer's Floating Rate Account" means the
Master Servicer's Floating Rate Account established and maintained by the
Capmark Master Servicer pursuant to Section 5.3(c) for the Class A-MFL
Certificates.
"Class A-MFL Regular Interest" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-MFL Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate less 0.042% per annum.
"Class B Component" means a component of the beneficial interest in
REMIC III evidenced by the Class B Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B.
"Class C-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-1.
"Class C-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-2.
"Class D-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-1.
"Class D-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-2.
"Class E-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class E Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest E-1.
"Class E-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class E Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest E-2.
"Class EI Grantor Trust" means that portion of the Trust consisting
of Excess Interest and the Excess Interest Sub-account.
"Class F Component" means a component of the beneficial interest in
REMIC III evidenced by the Class F Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F.
"Class G-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class G Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G-1.
"Class G-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class G Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G-2.
"Class H-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H-1.
"Class H-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H-2.
"Class J Component" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest J.
"Class K-1 Component" means a component of the Beneficial interest
in REMIC III evidenced by the Class K Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K-1.
"Class K-2 Component" means a component of the Beneficial interest
in REMIC III evidenced by the Class K Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K-2.
"Class L Component" means a component of the beneficial interest in
REMIC III evidenced by the Class L Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest L.
"Class M Component" means a component of the beneficial interest in
REMIC III evidenced by the Class M Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest M.
"Class N Component" means a component of the beneficial interest in
REMIC III evidenced by the Class N Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest N.
"Class O Component" means a component of the beneficial interest in
REMIC III evidenced by the Class O Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest O.
"Class P Component" means a component of the beneficial interest in
REMIC III evidenced by the Class P Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest P.
"Class Q Component" means a component of the beneficial interest in
REMIC III evidenced by the Class Q Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest Q.
"Class S Component" means a component of the beneficial interest in
REMIC III evidenced by the Class S Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest S.
"Class X Certificates" means the Class X-1 Certificates and the
Class X-2 Certificates, collectively.
"Class X-1 Notional Amount" means, with respect to the Class X-1
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates (other than the
Floating Rate Certificates) and the Floating Rate Regular Interests, which shall
equal the sum of the then Component Notional Amounts.
"Class X-1 Strip Rate" means, with respect to any Class of
Components (other than Components that are also Class X-2 Components) for any
Distribution Date, a rate per annum equal to (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate
for the Corresponding Certificates. In the case of any Class of Components that
are also Class X-2 Components, (i) for any Distribution Date occurring on or
before the related Class X-2 Component Crossover Date, a rate per annum equal
to, (x) the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, minus (y) the greater of (1) the rate per annum corresponding to such
Distribution Date as set forth in Schedule XVI attached hereto and (2) the Pass
Through Rate for the Class of Corresponding Certificates, and (ii) for any
Distribution Date occurring after the related Class X-2 Component Crossover
Date, a rate per annum equal to (x) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, minus (y) the Pass-Through Rate for the
Corresponding Certificates (provided that in no event shall any Class X-1 Strip
Rate be less than zero).
"Class X-2 Component Crossover Date" means, (i) with respect to the
Class A-1-2 Component, Class A-1A-2 Component and Class A-2-1 Component, the
Distribution Date in November 2008, (ii) with respect to the Class A-1A-3
Component, Class A-2-2 Component, Class A-3-1 Component, Class K-1 Component,
Class L Component, Class M Component and Class N Component, the Distribution
Date occurring in November 2009, (iii) with respect to the Class A-1A-4, Class
A-3-2 Component, Class A-4-1 Component, Class H-1 Component, Class J Component
and Class K-2 Component, the Distribution Date occurring in November 2010, (iv)
with respect to the Class A-1A-5 Component, Class A-4-2 Component, Class G-1
Component and Class H-2 Component, the Distribution Date occurring in November
2011, (v) with respect to the Class A-1A-6 Component, Class A-4-3 Component,
Class E-1 Component, Class F Component and Class G-2 Component, the Distribution
Date occurring in November 2012, (vi) with respect to the Class A-1A-7
Component, Class A-4-4 Component, Class D-1 Component and Class E-2 Component,
the Distribution Date occurring in November 2013, (vii) with respect to the
Class A-1A-8 Component, Class A-4-5 Component, Class C-1 Component and the Class
D-2 Component, the Distribution Date occurring in November 2014, and (viii) with
respect to the Class A-1A-9 Component, Class A-4-6 Component, Class A-M
Component, Class A-MFL Component, Class A-MA Component, Class A-J Component,
Class A-JFL Component, Class A-JA Component, Class B Component and Class C-2
Component, the Distribution Date occurring in November 2015.
"Class X-2 Components" means each of the Class A-1-2 Component,
Class A-1A-2 Component, Class A-1A-3 Component, Class A-1A-4 Component, Class
A-1A-5 Component, Class A-1A-6 Component, Class A-1A-7 Component, Class A-1A-8
Component, Class A-1A-9 Component, Class A-2-1 Component, Class A-2-2 Component,
Class A-3-1 Component, Class A-3-2 Component, Class A-4-1 Component, Class A-4-2
Component, Class A-4-3 Component, Class A-4-4 Component, Class A-4-5 Component,
Class A-4-6 Component, Class A-M Component, Class A-MFL Component, Class A-MA
Component, Class A-J Component, Class A-JFL Component, Class A-JA Component,
Class B Component, Class C-1 Component, Class C-2 Component, Class D-1
Component, Class D-2 Component, Class E-1 Component, Class E-2 Component, Class
F Component, Class G-1 Component, Class G-2 Component, Class H-1 Component,
Class H-2 Component, Class J Component, Class K-1 Component, Class K-2
Component, Class L Component, Class M Component and Class N Component.
"Class X-2 Notional Amount" means as of any date of determination,
the sum of the then Component Notional Amounts of the Class X-2 Components
excluding the Class X-2 Components for which the Class X-2 Crossover Date has
been previously passed.
"Class X-2 Strip Rate" means, with respect to each of the Class X-2
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class X-2 Component
Crossover Date, the excess, if any, of (x) the lesser of (i) the rate per annum
corresponding to such Distribution Date as set forth in Schedule XVI attached
hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over (y) the Pass Through Rate for the Class of Corresponding
Certificates (provided that, in no event shall any Class X-2 Strip Rate be less
than zero), and (ii) for any Distribution Date occurring after the related Class
X-2 Component Crossover Date, 0% per annum.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"Clearstream" means Clearstream Banking Luxembourg, societe anonyme.
"Closing Date" means November 29, 2007.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA Advance Recovery Report" means 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.
"CMSA Bond Level File" means a report substantially in the form of,
and containing the information called for in, the downloadable form of the "Bond
Level File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Paying Agent, as applicable.
"CMSA Collateral Summary File" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Collateral Summary File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Paying Agent, as applicable.
"CMSA Comparative Financial Status Report" means 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.
"CMSA Delinquent Loan Status Report" means 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.
"CMSA Financial File" means 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.
"CMSA Historical Liquidation Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Historical Liquidation Loss Report" available as of the Closing Date on
the CMSA Website.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" means 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.
"CMSA Loan Level Reserve/LOC Report" means 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.
"CMSA Loan Periodic Update File" means a monthly data file
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website.
"CMSA Loan Setup File" means a report substantially in the form of,
and containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website.
"CMSA NOI Adjustment Worksheet" means 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.
"CMSA Operating Statement Analysis Report" means 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.
"CMSA Property File" means a data file substantially in the form of,
and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website.
"CMSA Reconciliation of Funds" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Reconciliation of Funds" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Paying Agent.
"CMSA REO Status Report" means 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.
"CMSA Reports" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively, as the forms thereof are modified,
expanded or otherwise changed from time to time by the CMSA. With respect to new
reports created and approved by the CMSA, such new reports will be used in this
transaction (provided, however, that insofar as any such new report requires the
presentation of information in addition to that called for by the current CMSA
reports, such new report is reasonably acceptable to a Master Servicer or a
Special Servicer, as applicable) and the Depositor shall direct the Paying Agent
as to whether such reports will be Restricted Servicer Reports or Unrestricted
Servicer Reports. The Paying Agent shall provide the Master Servicers and
Special Servicers with a copy of such direction within two Business Days after
its receipt. In the case of each Mortgaged Property securing a Co-op Mortgage
Loan, the respective files and reports comprising the CMSA Reports shall present
the Projected Net Cash Flow for such Mortgaged Property and the Debt Service
Coverage Ratio for such Co-op Mortgage Loan, as such terms apply to residential
cooperative properties, if and to the extent that such file or report requires
preparation and/or submission of data concerning net cash flow or debt service
coverage.
"CMSA Servicer Watch List" means 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;
provided, however, that, notwithstanding the foregoing, the NCB Master Servicer
shall not be required to include a Co-op Mortgage Loan on the Servicer Watch
List on account of the Debt Service Coverage Ratio of such Co-op Mortgage Loan,
unless such Debt Service Coverage Ratio shall fall below 0.90x (for purposes of
the calculation of the Debt Service Coverage Ratio of a Co-op Mortgage Loan for
this definition only, the Projected Net Cash Flow of the related Mortgaged
Property shall be adjusted to reflect the actual expenses incurred by the
Mortgagor).
"CMSA Special Servicer Loan File" means 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 approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Special Servicer Loan File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the applicable Special Servicer.
"CMSA Total Loan Report" means a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Total Loan Report" available as of the Closing Date on the CMSA Website.
"CMSA Website" means 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.
"Co-Lender Agreement" means, (i) with respect to a Serviced Loan
Group, a co-lender agreement or agreement among noteholders between the holders
of the related Senior Mortgage Loan and the Serviced Companion Loans and (ii)
with respect to a Non-Trust Serviced Loan Group, a co-lender agreement between
the holders of such Non-Trust Serviced Pari Passu Loan and the related Non-Trust
Serviced Companion Loan.
"Co-op Mortgage Loan" means any Mortgage Loan that, as of the date
it is first included in the Trust, is secured by a Mortgage that encumbers a
residential cooperative property, as identified on Schedule VI hereto.
"Co-op Special Servicer" means National Consumer Cooperative Bank,
or any successor Special Servicer as herein provided, including without
limitation any successor Special Servicer appointed pursuant to Section 9.39
hereof.
"Co-op Trust Assets" means the Co-op Mortgage Loans, any REO
Properties acquired by the Trust with respect to the Co-op Mortgage Loans and
any and all other related assets of the Trust.
"Code" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"Collection Period" means, with respect to any Distribution Date,
the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"Commission" means the Securities and Exchange Commission.
"Compensating Interest" means, with respect to any Distribution Date
and each Master Servicer, an amount equal to the excess of (A) Prepayment
Interest Shortfalls incurred in respect of the Mortgage Loans serviced by such
Master Servicer resulting from Principal Prepayments on such Mortgage Loans (but
not including the Non-Trust Serviced Pari Passu Loans) during the related
Collection Period, over (B) the aggregate of the Prepayment Interest Excesses
received in respect of the Mortgage Loans serviced by such Master Servicer
resulting from Principal Prepayments on such Mortgage Loan (but not including
the Non-Trust Serviced Pari Passu Loan) during the same related Collection
Period. Notwithstanding the foregoing, such Compensating Interest shall not (i)
with respect to a Principal Prepayment, exceed the portion of the aggregate
Master Servicing Fee accrued at a rate per annum equal to 2 basis points for the
related Collection Period calculated in respect of such Master Servicer's
Mortgage Loans, including REO Mortgage Loans (but not including the Non-Trust
Serviced Pari Passu Loans), to the extent that such Master Servicer applied the
subject Principal Prepayments in accordance with the terms of the related
Mortgage Loan documents; or (ii) be required to be paid on any Prepayment
Interest Shortfalls incurred in respect of any Specially Serviced Mortgage Loans
or Defaulted Mortgage Loan.
"Component" means each of the Class A-1-1 Component, Class A-1-2
Component, Class A-1A-1 Component, Class A-1A-2 Component, Class A-1A-3
Component, Class A-1A-4 Component, Class A-1A-5 Component, Class A-1A-6
Component, Class A-1A-7 Component, Class A-1A-8 Component, Class A-1A-9
Component, Class A-2-1 Component, Class A-2-2 Component, Class A-3-1 Component,
Class A-3-2 Component, Class A-4-1 Component, Class A-4-2 Component, Class A-4-3
Component, Class A-4-4 Component, Class A-4-5 Component, Class A-4-6 Component,
Class A-M Component, Class A-MFL Component, Class A-MA Component, Class A-J
Component, Class A-JFL Component, Class A-JA Component, Class B Component, Class
C-1 Component, Class C-2 Component, Class D-1 Component, Class D-2 Component,
Class E-1 Component, Class E-2 Component, Class F Component, Class G-1
Component, Class G-2 Component, Class H-1 Component, Class H-2 Component, Class
J Component, Class K-1 Component, Class K-2 Component, Class L Component, Class
M Component, Class N Component, Class O Component, Class P Component, Class Q
Component and Class S Component.
"Component Notional Amount" means with respect to each Component and
any date of determination, an amount equal to the then Certificate Balance of
its Corresponding REMIC II Regular Interest.
"Condemnation Proceeds" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers (other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan (or Serviced Loan Group, as
applicable). With respect to the Mortgaged Property securing a Serviced Loan
Group, only the portion of such amounts payable to the holder of the related
Senior Mortgage Loan shall be included in Condemnation Proceeds. With respect to
the mortgaged properties securing a Non-Trust Serviced Pari Passu Loan, the
Condemnation Proceeds will include only the portion of such net proceeds that is
payable to the holder of such Non-Trust Serviced Pari Passu Loan pursuant to the
related Other Pooling and Servicing Agreement.
"Controlling Class" means the most subordinate Class of REMIC
Regular Certificates (other than the Class X Certificates) or Floating Rate
Certificates outstanding at any time of determination; provided that, if the
aggregate Certificate Balance of such Class is less than 25% of the initial
Certificate Balance of such Class as of the Closing Date, the Controlling Class
shall be the next most subordinate Class of REMIC Regular Certificates (other
than the Class X Certificates) or Floating Rate Certificates outstanding. As of
the Closing Date, the Controlling Class will be the Class S Certificates.
"Controlling Person" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"Corporate Trust Office" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose or the transfer of
Certificates, the principal corporate trust office of the Certificate Registrar
and Paying Agent (which is presently located at Xxxxx Fargo Center, Sixth Street
and Marquette Avenue, MAC #N9303-121, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000,
Attention: Corporate Trust Services (CMBS), Attention: Xxxxxx Xxxxxxx Capital I
Inc., Series 2007-IQ16) and for all other purposes at 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxxx Xxxxxxx Capital I Inc., Series
2007-IQ16, or at such other address as the Certificate Registrar and Paying
Agent may designate from time to time by notice to the Certificateholders, the
Depositor, the Trustee, the Master Servicers and the Special Servicers). The
principal corporate trust office of the Trustee is presently located at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services -- Xxxxxx Xxxxxxx Capital I Inc., Series
2007-IQ16, or at such other address as the Trustee may designate from time to
time by notice to the Certificateholders, the Paying Agent, the Depositor, the
Master Servicers and the Special Servicers.
"Corresponding Certificate" means the Class of Certificates (or, in
the case of a Class of Floating Rate Certificates, the related Class of Floating
Rate Regular Interest) as set forth in the Preliminary Statement with respect to
any Corresponding Component or any Corresponding REMIC II Regular Interest.
"Corresponding Component" means the Component as set forth in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding REMIC II Regular Interest.
"Corresponding REMIC I Regular Interest" means, with respect to each
Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the Principal Balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"Corresponding REMIC II Regular Interest" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates or any Corresponding Component (or, in the case of a
Class of Floating Rate Certificates, the related Class of Floating Rate Regular
Interest).
"Cross-Collateralized Loan" has the meaning set forth in Section
2.3(a) hereof.
"Custodian" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and satisfies the eligibility requirements of the Trustee as
set forth in Section 7.5.
"Custodian Mortgage File" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan (or
Serviced Loan Group, as applicable) and any additional documents required to be
added to the Mortgage File pursuant to this Agreement; provided that whenever
the term "Custodian Mortgage File" is used to refer to documents actually
received by the Custodian on the Trustee's behalf, such terms shall not be
deemed to include such documents required to be included therein unless they are
actually so received.
"Customer" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Cut-Off Date" means the end of business on November 1, 2007. The
Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the
first day of each month shall be the end of business on November 1, 2007 and
Scheduled Payments due in November 2007 with respect to Mortgage Loans not
having Due Dates on the first of each month have been deemed received on
November 1, 2007, not the actual day on which such Scheduled Payments were due.
"DBRS" means DBRS, Inc.
"Debt Service Coverage Ratio" means either (a) with respect to any
Mortgage Loan (other than a Co-op Mortgage Loan), as of any date of
determination, the ratio of (1) the annual, year-end net cash flow of the
related Mortgaged Property or Mortgaged Properties, determined as provided in
the CMSA NOI Adjustment Worksheet based on the most recent annual, year-end
operating statements provided by the Mortgagor (or if no annual, year-end
operating statements have been provided, based on such information provided by
the Mortgagor, including without limitation rent rolls and other unaudited
financial information, as the applicable Master Servicer shall determine in
accordance with the Servicing Standard) to (2) the annualized amount of debt
service payable on that Mortgage Loan or, in the case of Mortgage Loans that are
interest-only, where periodic payments are interest-only for a certain amount of
time after origination after which date the Mortgage Loan amortizes principal
for the remaining term of the Mortgage Loan, the annualized amount of debt
service that will be payable under the Mortgage Loan after the beginning of the
amortization term of the Mortgage Loan, or (b) with respect to any Co-op
Mortgage Loan, as of any date of determination, the ratio of (1) the Projected
Net Cash Flow for the related Mortgaged Property on an annualized basis to (2)
the annualized amount of debt service payable on that Co-op Mortgage Loan. With
respect to a Serviced Loan Group, the annualized debt service amount in clause
(a)2 above shall include the related Senior Mortgage Loan and the Serviced
Companion Loans that are Pari Passu Loans but, unless otherwise noted, shall not
include the Serviced Companion Loans that are Subordinate Loans.
"Debt Service Reduction Amount" means, with respect to a Due Date
and the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan (or Serviced Loan Group, as applicable) as a result of any
proceeding under bankruptcy law or any similar proceeding (other than a
Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred as a result of any such proceeding, but not forgiven, the
amount of the reduction shall include only the net present value (calculated at
the related Mortgage Rate) of the reduction.
"Defaulted Mortgage Loan" means a Mortgage Loan (or Serviced Loan
Group, as applicable) that is in default under the terms of the applicable
Mortgage Loan documentation and for which any applicable grace period has
expired and, with respect to a Serviced Loan Group, such default is unremedied
by the exercise of a cure right under the related Co-Lender Agreement.
"Defeasance Collateral" means, with respect to any Defeasance Loan,
"government securities" as defined in Section 2(a)(16) of the Investment Company
Act of 1940 required to be pledged in lieu of prepayment pursuant to the terms
thereof.
"Defeasance Loan" means any Mortgage Loan (or Serviced Loan Group,
as applicable) which requires or permits the related Mortgagor (or permits the
holder of such Mortgage Loan to require the related Mortgagor) to pledge
Defeasance Collateral to such holder in lieu of prepayment.
"Deficient Valuation" means, with respect to any Mortgage Loan
(other than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as
applicable), a valuation by a court of competent jurisdiction of the Mortgaged
Property relating to such Mortgage Loan in an amount less than the then
outstanding indebtedness under such Mortgage Loan (or Serviced Loan Group, as
the case may be), which valuation results from a proceeding initiated under the
United States Bankruptcy Code, as amended from time to time, and that reduces
the amount the Mortgagor is required to pay under such Mortgage Loan (or
Serviced Loan Group, as the case may be). With respect to the Mortgaged
Properties securing a Non-Trust Serviced Loan Group, the pro rata portion of the
valuation allocable to such Non-Trust Serviced Pari Passu Loan pursuant to the
terms of the related Other Pooling and Servicing Agreement).
"Deficient Valuation Amount" means, with respect to each Mortgage
Loan (or Serviced Loan Group, as applicable), the amount by which the total
amount due with respect to such Mortgage Loan (or Serviced Loan Group, as the
case may be) (excluding interest not yet accrued), including the Principal
Balance of such Mortgage Loan (or Serviced Loan Group, as the case may be) plus
any accrued and unpaid interest thereon and any other amounts recoverable from
the Mortgagor with respect thereto pursuant to the terms thereof, is reduced in
connection with a Deficient Valuation; provided, however, that with respect to a
Serviced Loan Group, the Deficient Valuation Amount allocable to the related
Senior Mortgage Loan shall be determined pursuant to the related Co-Lender
Agreement.
"Definitive Certificates" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"Deleted Mortgage Loan" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"Depositor" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"Depository" has the meaning set forth in Section 3.7(a).
"Depository Agreement" means the Blanket Letter of Representations
dated the Closing Date between the Depositor and the Depository.
"Determination Date" means, with respect to any Distribution Date
and any of the Mortgage Loans (or Serviced Loan Groups, as applicable), the 8th
day of the month in which such Distribution Date occurs or, if such day is not a
Business Day, the immediately succeeding Business Day, commencing December 10,
2007.
"Directing Holder" means, with respect to a Serviced Loan Group, the
holder of the related Serviced Companion Loan that is designated pursuant to the
terms of the related Co-Lender Agreement as the party who is entitled to direct,
consult with or advise the applicable Master Servicer or the applicable Special
Servicer, as applicable, regarding certain actions or inactions with respect to
such Serviced Loan Group.
"Directly Operate" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the applicable Special Servicer on behalf of the Trustee) shall not
be considered to Directly Operate an REO Property solely because the Trustee (or
the applicable 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, tenant improvements or capital
expenditures with respect to such REO Property (including, without limitation,
construction activity to effect repairs or in connection with leasing activity)
or undertakes any ministerial action incidental thereto.
"Discount Rate" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the applicable Master Servicer will select a comparable publication
to determine the Treasury Rate.
"Disqualified Organization" means any of (i) the United States, 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 FHLMC, 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) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from 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,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMIC Pools, or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the transfer of an ownership interest in
a Residual Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest" means, with respect to any
Distribution Date and any Class of Certificates (other than the Floating Rate
Certificates) or Interests (including the Floating Rate Regular Interests), the
sum of (A) Accrued Certificate Interest in respect of such Class or Interest,
reduced (to not less than zero) by (i) any Net Aggregate Prepayment Interest
Shortfalls for such Class of Certificates or Interests, allocated on such
Distribution Date to such Class or Interest pursuant to Section 6.7, and (ii)
Realized Losses allocated on such Distribution Date to reduce the Distributable
Certificate Interest payable to such Class or Interest pursuant to Section 6.6,
plus (B) the Unpaid Interest, plus (C) if the Aggregate Certificate Balance is
reduced because of a diversion of principal in accordance with Section
5.2(a)(II)(iv), and there is a subsequent recovery of amounts as described in
Section 6.6(c)(i), then interest at the applicable Pass-Through Rate that would
have accrued and been distributable with respect to the amount by which the
Aggregate Certificate Balance was so reduced, which interest shall accrue from
the date that the related Realized Loss is allocated through the end of the
Interest Accrual Period related to the Distribution Date on which such amounts
are subsequently recovered.
"Distribution Account" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"Distribution Date" means the fourth Business Day following the
Determination Date, commencing December 14, 2007.
"Due Date" means, with respect to a Mortgage Loan (or Serviced Loan
Group, as applicable), the date on which a Scheduled Payment is first due
without the application of grace periods.
"Eligible Account" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "F-1" by Fitch, "A-1" by S&P and "R-1(middle)" by
DBRS or, if not rated by DBRS, an equivalent rating such as those listed above
by at least two nationally recognized statistical rating organizations (which
may include S&P, Fitch and/or Xxxxx'x), if the deposits are to be held in the
account for 30 days or less, or (B) long term unsecured debt obligations are
rated at least "AA-" (or "A" (without regard to any plus or minus) if the
short-term unsecured debt obligation is rated at least "F-1") by Fitch, "AA-"
(or "A" (without regard to any plus or minus), if the short-term unsecured debt
obligations are rated at least "A-1") by S&P and "A(high)" by DBRS (or if not
rated by DBRS, an equivalent rating (such as those listed above for Fitch and
S&P) by at least two nationally recognized statistical rating organizations
(which may include S&P, Fitch and/or Xxxxx'x)), if the deposits are to be held
in the account more than 30 days, (ii) a segregated trust account or accounts
maintained with the corporate trust department of a federal or state chartered
depository institution or trust company that, in either case, has trust powers,
acting in its fiduciary capacity, provided that any state chartered depository
institution or trust company is subject to regulation regarding fiduciary funds
substantially similar to 12 C.F.R. Section 9.10(b), (iii) an account or accounts
of a depository institution acceptable to the Rating Agencies, as evidenced by
Rating Agency Confirmation with respect to the use of any such account as a
Certificate Account or the Distribution Account, (iv) in the case of accounts
with respect to NCB, FSB Loans, any account maintained with NCB, FSB (provided
that NCB, FSB has a combined capital and surplus of at least $40,000,000), or
(v) any other account, the use of which would not, in and of itself, (A) cause a
qualification, downgrade or withdrawal of any rating then assigned to any Class
of Certificates by either Rating Agency and (B) be inconsistent with the
requirements of FASB 140 or any other interpretations with respect thereto
applicable to such accounts. Notwithstanding anything in the foregoing to the
contrary, an account shall not fail to be an Eligible Account solely because it
is maintained with Xxxxx Fargo Bank, National Association, a wholly owned
subsidiary of Xxxxx Fargo & Co., provided that such subsidiary's or its parent's
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are at least "F-1" in the case of Fitch, "A-1" in the case of S&P and
"R-1(middle)" in the case of DBRS (or, if not rated by DBRS, an equivalent
rating (such as those listed above for Fitch and S&P) by at least two nationally
recognized statistical rating organizations (which may include S&P, Fitch and/or
Xxxxx'x), if the deposits are to be held in the account for 30 days or less, or
(B) long-term unsecured debt obligations are rated at least "A+" by Fitch, "AA"
(or "A" (without regard to any plus or minus), if the short-term unsecured debt
obligations are rated at least "A-1") by S&P, and "AA(low)" in the case of DBRS
(or, if not rated by DBRS, an equivalent rating (such as those listed above for
Fitch and S&P) by at least two nationally recognized statistical rating
organizations (which may include S&P, Fitch and/or Xxxxx'x), if the deposits are
to be held in the account for more than 30 days.
"Eligible Investments" means any one or more of the following
financial assets or other property:
(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 the obligations of which are backed by the full faith and credit
of the United States of America; provided that any obligation of FNMA or
FHLMC, other than an unsecured senior debt obligation of FNMA or FHLMC,
shall be an Eligible Investment only if Rating Agency Confirmation is
obtained with respect to such investment;
(ii) demand or time deposits in, unsecured certificates of deposit
of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the
Master Servicers, the Special Servicers, the Paying Agent or any Affiliate
of the Trustee, a Master Servicer, the Special Servicers or the Paying
Agent, acting in its commercial capacity) 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 "F-1" by Fitch, "A-1"
(without regard to any plus or minus) by S&P and "R-1(middle)" by DBRS
(or, if not rated by DBRS, an equivalent rating (such as those listed
above for Fitch and S&P) by at least two nationally recognized statistical
rating organizations (which may include S&P, Fitch and/or Xxxxx'x)) or the
long-term unsecured debt obligations of such depository institution or
trust company have been assigned a rating by each Rating Agency at least
equal to "AA" by Fitch, "AA-" by S&P or its equivalent and "AA(low)" by
DBRS (or, if not rated by DBRS, an equivalent rating (such as those listed
above for Fitch and S&P) by at least two nationally recognized statistical
rating organizations (which may include S&P, Fitch and/or Xxxxx'x)) or, in
each case, if not rated by a Rating Agency, then such Rating Agency has
issued a Rating Agency Confirmation;
(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 and where such repurchase
obligation will mature prior to the Business Day preceding the next date
upon which, as described in this Agreement, such amounts are required to
be withdrawn from a Certificate Account and which meets the minimum rating
requirement for such entity described above (or for which Rating Agency
Confirmation is obtained with respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) 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 are rated at least "AA" or its equivalent by
each Rating Agency, unless otherwise specified in writing by the Rating
Agency; provided that securities issued by any particular corporation will
not be Eligible Investments to the extent that investment therein will
cause the then-outstanding principal amount of securities issued by such
corporation and held in a Certificate Account to exceed 5% of the sum of
the aggregate Certificate Principal Balance of the Principal Balance
Certificates and the aggregate principal amount of all Eligible
Investments in the Certificate Account;
(v) commercial paper (including both non interest bearing discount
obligations and interest bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
rated "F-1+" by Fitch, "A-1" (without regard to any plus or minus) by S&P,
and "R-1(middle)" by DBRS (and, if not rated by DBRS, an equivalent rating
(such as those listed above for Fitch and S&P) by at least two nationally
recognized statistical rating organizations (which may include S&P, Fitch
and/or Xxxxx'x)) (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(vi) units of investment funds (including money market funds) that
are rated in the highest long term category by Fitch, "AAAm" by S&P (or if
not rated by either such Rating Agency, for which a Rating Agency
Confirmation is obtained from the applicable Rating Agency), and "AAA" by
DBRS, or if not rated by DBRS, an equivalent rating (such as those listed
above for Fitch and S&P) by at least two nationally recognized statistical
rating organizations (which may include S&P, Fitch and/or Xxxxx'x);
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose long
term unsecured debt rating is not less than "AA" (or its equivalent) by
Fitch and S&P, or for which Rating Agency Confirmation is obtained with
respect to such ratings, and "AA(low)" by DBRS (or, if not rated by DBRS,
an equivalent rating (such as those listed above for Fitch and S&P) by at
least two nationally recognized statistical rating organizations (which
may include S&P, Fitch and/or Xxxxx'x)); provided that, with respect to
S&P, such agreements state that funds may be withdrawn at par without
penalty;
(viii) any money market funds (including those managed or advised by
the Trustee or the Paying Agent or any of their Affiliates) that maintain
a constant asset value and that are rated "AAA" (or its equivalent) by
Fitch (if so rated by Fitch), "AAAm" or "AAAm G" (or its equivalent) by
S&P and "AAA" (or its equivalent) by DBRS (and, if not rated by DBRS, an
equivalent rating by at least two nationally recognized statistical rating
organizations (which may include S&P, Fitch and/or Xxxxx'x)), and any
other demand, money market or time deposit, or any other obligation,
security or investment, with respect to which Rating Agency Confirmation
has been obtained; and
(ix) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion
of Counsel delivered to the Trustee and the Paying Agent by the applicable
Master Servicer or the applicable Special Servicer at the applicable
Master Servicer's or the applicable Special Servicer's expense), as are
acceptable to the Rating Agencies (as evidenced by Rating Agency
Confirmation) and treated as "permitted investments" that are "cash flow
investments" under Section 860G(a)(5) of the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicers but not yet deposited in the Certificate
Accounts) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible Investments shall be purchased at a price in
excess of par. For the purpose of this definition, units of investment funds
(including money market funds) shall be deemed to mature daily.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgage Loan or the related 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 Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"Environmental Laws" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Account" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"Escrow Amount" means any amount payable with respect to a Mortgage
Loan for taxes, assessments, water rates, Standard Hazard Insurance Policy
premiums, ground lease payments, reserves for capital improvements, deferred
maintenance, repairs, tenant improvements, leasing commissions, rental
achievements, environmental matters and other reserves or comparable items.
"Euroclear" means the Euroclear system.
"Event of Default" has the meaning set forth in Section 8.28(b).
"Excess Interest" means, with respect to an ARD Loan if such ARD
Loan is not prepaid in full on or before its Anticipated Repayment Date, the
excess, if any of (i) interest accrued at the rate of interest applicable to
such Mortgage Loan after such Anticipated Repayment Date (plus any interest on
such interest as may be provided for under the Mortgage Loan documents) over
(ii) interest accrued at the rate of interest applicable to such Mortgage Loan
before such Anticipated Repayment Date. Excess Interest on an ARD Loan is an
asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"Excess Interest Sub-account" means an administrative account deemed
to be a sub-account of the Distribution Account, in accordance with the
provisions of Section 5.3. The Excess Interest Sub-account shall not be an asset
of any REMIC Pool formed hereunder.
"Excess Liquidation Proceeds" means, with respect to any Mortgage
Loan (or Serviced Loan Group, as applicable), the excess of (i) Liquidation
Proceeds of a Mortgage Loan or Serviced Loan Group, as applicable, or related
REO Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan (or Serviced
Loan Group, as the case may be) on the date such proceeds were received plus
accrued and unpaid interest with respect to such Mortgage Loan and all expenses
(including Additional Trust Expenses and Unliquidated Advances) with respect to
such Mortgage Loan (or Serviced Loan Group, as the case may be).
"Excess Servicing Fee" means, with respect to the Mortgage Loans for
which an "excess servicing fee rate" is designated on the Mortgage Loan
Schedule, the monthly fee payable to the parties set forth on Exhibit J hereto
or their successors and assigns, as holders of excess servicing rights, which
fee shall accrue on the Scheduled Principal Balance of each such Mortgage Loan
immediately prior to the Due Date occurring in each month at the per annum rate
(determined in the same manner as the applicable Mortgage Rate for such Mortgage
Loan is determined for such month) specified on the Mortgage Loan Schedule (the
"Excess Servicing Fee Rate"). Each holder of a right to receive Excess Servicing
Fees is entitled to Excess Servicing Fees only with respect to the Mortgage
Loans as indicated on Exhibit J hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Exchange Certification" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A IAI Global
Certificate, as applicable.
"Expense Loss" means a loss realized upon payment by the Trust of an
Additional Trust Expense, and with respect to a Non-Trust Serviced Pari Passu
Loan, without duplication, the pro rata portion of similar items to the
Additional Trust Expenses, as such expenses are incurred by the trust formed
pursuant to the related Other Pooling and Servicing Agreement or the parties
thereto, to the extent allocable to such Non-Trust Serviced Pari Passu Loan.
"Extension" has the meaning set forth in Section 9.15(a).
"FASB 140" means the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing of Financial
Assets and Extinguishment of Liabilities," issued in September 2002.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Certification" has the meaning set forth in Section 2.2.
"Final Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Final Rated Distribution Date" means, with respect to each rated
Class of Certificates, the Distribution Date in December 2049.
"Final Recovery Determination" means a determination with respect
to: (i) any Mortgage Loan (or Serviced Loan Group, as applicable) other than a
Specially Serviced Mortgage Loan), by the applicable Master Servicer in
consultation with the applicable Special Servicer and (ii) with respect to any
Specially Serviced Mortgage Loan (including a Mortgage Loan (or Serviced Loan
Group, as the case may be) that became an REO Property) by the applicable
Special Servicer, in each case, in its good faith discretion, consistent with
the Servicing Standard, that all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, Purchase Proceeds and other payments or recoveries which
the applicable Master Servicer or the applicable Special Servicer, as the case
may be, expects to be finally recoverable on such Mortgage Loan (or Serviced
Loan Group, as the case may be), without regard to any obligation of such Master
Servicer or the Trustee, as the case may be, to make payments from its own funds
pursuant to Article IV hereof, have been recovered. With respect to each
Mortgage Loan that is cross-collateralized by Mortgaged Properties securing
other Mortgage Loans, all of the Mortgaged Properties and other security must be
considered in connection with any such Final Recovery Determination. The
applicable Special Servicer shall be required to provide the applicable Master
Servicer with prompt written notice of any Final Recovery Determination with
respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan upon making
such determination. The applicable Master Servicer shall promptly notify the
Trustee and the Paying Agent of such determination and the Paying Agent shall
deliver a copy of such notice to each Rating Agency.
"Final Scheduled Distribution Date" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the Mortgage Loans in accordance with their terms, except
that the ARD Loan is assumed to be repaid on its Anticipated Repayment Date.
"Fitch" means Fitch, Inc. or its successor in interest.
"Fixed Interest Distribution" means, with respect to each Class of
Floating Rate Regular Interests, the payments of interest required to be made in
respect of each Distribution Date, commencing in December 2007, by the Capmark
Master Servicer on behalf of the Trustee to the Swap Counterparty pursuant to
the related Swap Transaction at a rate equal to the Pass-Through Rate of such
Floating Rate Regular Interest on the related Floating Rate Certificate Notional
Amount subject to reduction in accordance with the related Swap Transaction.
"Floating Rate Account" means any of the Class A-MFL Floating Rate
Account and the Class A-JFL Floating Rate Account.
"Floating Rate Available Funds" means, with respect to each Class of
the Floating Rate Regular Interests, in respect of each Distribution Date, (i)
the sum of all previously undistributed payments or other receipts on account of
principal and interest and other sums on or in respect of such Floating Rate
Regular Interest received by the Paying Agent (or the Capmark Master Servicer on
the Paying Agent's behalf) after the Cut-Off Date and on or prior to such
Distribution Date and (ii) the sum of all previously undistributed amounts
received from the Swap Counterparty in respect of such Floating Rate Regular
Interest pursuant to the related Swap Transaction, including, but not limited
to, any termination payment, but in the case of both (i) and (ii) excluding the
following: (a) all amounts of Prepayment Premiums allocated to such Floating
Rate Regular Interest for so long as the related Swap Transaction is in effect
and (b) all regularly scheduled interest payments required to be paid to the
Swap Counterparty in respect of such Floating Rate Regular Interest pursuant to
the related Swap Transaction.
"Floating Rate Certificates" means either the Class A-MFL or Class
A-JFL Certificates.
"Floating Rate Certificate Notional Amount" means, with respect to
each Class of the Floating Rate Certificates, a notional amount equal to the
Certificate Balance of the related Floating Rate Regular Interest.
"Floating Rate Grantor Trust" means either the Class A-MFL Grantor
Trust or the Class A-JFL Grantor Trust.
"Floating Rate Interest Distribution Amount" means, with respect to
each Class of the Floating Rate Regular Interests, in respect of any
Distribution Date, the sum of (i) for so long as the related Swap Transaction is
in effect, the aggregate amount of interest received by the Paying Agent from
the Swap Counterparty in respect of the related Floating Rate Regular Interest
pursuant to the terms of the related Swap Transaction during the related
Interest Accrual Period and (ii) amounts in respect of interest (including
reimbursement of any Prepayment Interest Shortfalls) received on the related
Floating Rate Regular Interest not required to be paid to the Swap Counterparty
(which will arise due to the netting provisions of the related Swap Agreement or
upon the termination or expiration of the related Swap Agreement). If the Swap
Counterparty defaults on its obligation to pay such interest to the Paying
Agent, or if a Swap Default (that is a payment default by the Swap Counterparty)
occurs and is continuing or if the related Swap Transaction is terminated, the
related Floating Rate Interest Distribution Amount will be an amount equal to
the Distributable Certificate Interest in respect of the related Floating Rate
Regular Interest, until such time as such Swap Default is cured, or such
obligation is paid, as the case may be, or until a replacement Swap Transaction
is obtained.
"Floating Rate Principal Distribution Amount" means, with respect to
each Class of the Floating Rate Regular Interests, in respect of any
Distribution Date, an amount equal to the aggregate amount of the principal
payments made on such Floating Rate Regular Interest on such Distribution Date.
"Floating Rate Regular Interest" means either the Class A-MFL or
Class A-JFL Regular Interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Form 8-K Disclosure Information" has the meaning set forth in
Section 13.7.
"GECC" has the meaning assigned in the Preliminary Statement hereto.
"GECC Loans" mean, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"GECC Trust Assets" mean the GECC Loans, any REO Properties acquired
by the Trust with respect to the GECC Loans and any and all other related assets
of the Trust.
"General Special Servicer" means Centerline Servicing Inc., or any
successor General Special Servicer as herein provided, including without
limitation any successor General Special Servicer appointed pursuant to Section
9.39.
"Global Certificate" means any Rule 144A IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"Grantor Trust Provisions" shall mean those provisions of the Code
relating to grantor trusts, which appear in subpart E, Part I of subchapter J,
and related provisions, and proposed, temporary and final Treasury regulations,
including Treasury Regulations Section 301.7701-4(c)(2), and any published
rulings, notice and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
"Holder" means the Person in whose name a Certificate is registered
on the Certificate Register. With respect to a Floating Rate Regular Interest,
"Holder" means the Trustee on behalf of the Trust.
"IAI Definitive Certificate" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"Independent" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the
Commission's Regulation S-X. Independent means, when used with respect to any
other Person, a Person who (A) is in fact independent of another specified
Person and any Affiliate of such other Person, (B) does not have any material
direct or indirect financial interest in such other Person or any Affiliate of
such other Person, (C) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (D) is not a member
of the immediate family of a Person defined in clause (B) or (C) above.
"Independent Contractor" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the applicable Master Servicer (other than any Master Servicer,
but which may be an Affiliate of such Master Servicer), or (B) that is a
Specially Serviced Mortgage Loan, any Person designated by the applicable
Special Servicer that would be an "independent contractor" with respect to a
REMIC Pool within the meaning of Section 856(d)(3) of the Code if such REMIC
Pool were a real estate investment trust (except that the ownership test set
forth in such Section shall be considered to be met by any Person that owns,
directly or indirectly, 35% or more of the Aggregate Certificate Balance or
Notional Amount, as the case may be, of any Class of the Certificates (other
than the Residual Certificates), a Percentage Interest of 35% or more in the
Residual Certificates or such other interest in any Class of the Certificates or
of the applicable REMIC Pool as is set forth in an Opinion of Counsel, which
shall be at no expense to the Trustee or the Trust) so long as such REMIC Pool
does not receive or derive any income from such Person and provided that the
relationship between such Person and such REMIC is at arm's length, all within
the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other
Person (including a Master Servicer or a Special Servicer) upon receipt by the
Trustee of an Opinion of Counsel, which shall be at the expense of the Person
delivering such opinion to the Trustee, 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
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code), or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property.
"Initial Certification" has the meaning set forth in Section 2.2.
"Inspection Report" means a report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
Inspection Form" available on the CMSA Website.
"Institutional Accredited Investor" means an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"Insurance Policies" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"Insurance Proceeds" means amounts paid by the insurer under any
Insurance Policy (other than amounts required to be paid over to the Mortgagor
(or used to restore the related Mortgaged Property) pursuant to law, the related
Mortgage Loan (or Serviced Loan Group, as applicable) or the Servicing
Standard). With respect to the Mortgaged Property securing a Serviced Loan
Group, only the portion of such amounts payable to the holder of the related
Senior Mortgage Loan shall be included in Insurance Proceeds. With respect to a
mortgaged property securing a Non-Trust Serviced Loan Group, the Insurance
Proceeds will include only the portion of such net proceeds that is payable to
the holder of the related Non-Trust Serviced Pari Passu Loan pursuant to the
related Other Pooling and Servicing Agreement.
"Insured Environmental Event" has the meaning set forth in Section
9.1(f).
"Interest" means a REMIC I Regular Interest, REMIC II Regular
Interest or Floating Rate Regular Interest, as applicable.
"Interest Accrual Period" means, with respect to each Distribution
Date, for each Class of REMIC Regular Certificates and Floating Rate Regular
Interests, the calendar month immediately preceding the month in which such
Distribution Date occurs and with respect to each Class of Floating Rate
Certificates, subject to Section 6.12, the period from (and including) the prior
Distribution Date (or the Closing Date, in the case of the first such period)
and ending on (and including) the day before the current Distribution Date.
"Interest Reserve Account" means that Interest Reserve Account
maintained by the Paying Agent pursuant to Section 5.1(a), which account shall
be an Eligible Account.
"Interest Reserve Amount" has the meaning set forth in Section
5.1(d).
"Interest Reserve Loans" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"Interest Reset Date" means the day that is two Banking Days prior
to the start of the related Interest Accrual Period.
"Interested Person" means, as of any date of determination, the
Master Servicers, the Special Servicers, the Depositor, the holder of any
related Junior Indebtedness (with respect to any particular Mortgage Loan), a
holder of 50% or more of the Controlling Class, the Operating Adviser, any
Independent Contractor engaged by a Master Servicer or a Special Servicer
pursuant to this Agreement, or any Person actually known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"Investment Income" means income and gain realized on the investment
of funds deposited in the Certificate Account.
"Investor-Based Exemption" means any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 90-1 (for transactions by insurance company
pooled separate accounts), PTCE 91-38 (for transactions by bank collective
investment funds), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Laws.
"Junior Indebtedness" means any indebtedness of any Mortgagor that
is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
"Late Collections" means, with respect to any Mortgage Loan (or
Serviced Loan Group, as applicable), all amounts received during any Collection
Period, whether as late payments or as Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments
or collections of Scheduled Payments due but delinquent for a previous
Collection Period and not previously recovered.
"Late Fees" means a fee that is, unless otherwise provided in the
related Co-Lender Agreement, payable to the applicable Master Servicer or the
applicable Special Servicer, as the case may be, to the extent actually
collected from the Mortgagor as provided in the related Mortgage Loan (or
Serviced Loan Group, as applicable) in connection with a late payment made by
such Mortgagor.
"LIBOR" means with respect to each Interest Accrual Period, the per
annum rate for deposits in U.S. dollars for a period of one month, which appears
on Reuters Screen LIBOR01 Page as the "London Interbank Offering Rate" as of
11:00 a.m., London time, on the Interest Reset Date. If such rate does not
appear on said Reuters Screen LIBOR01 Page, LIBOR shall be the arithmetic mean
of the offered quotations obtained by the Swap Counterparty from the principal
London office of four major banks in the London interbank market selected by the
Swap Counterparty in its sole discretion (each, a "Reference Bank") for rates at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market for a period of one month in an amount that is representative
for a single transaction in the relevant market at the relevant time as of
approximately 11:00 a.m., London time, on the Interest Reset Date. If fewer than
two Reference Banks provide the Swap Counterparty with such quotations, LIBOR
shall be the rate per annum which the Swap Counterparty determines to be the
arithmetic mean of the rates quoted by major banks in New York City, New York
selected by the Swap Counterparty at approximately 11:00 a.m. New York City time
on the first day of such Interest Accrual Period for loans in U.S. dollars to
leading European banks for a period of one month in an amount that is
representative for a single transaction in the relevant market at the relevant
time. Notwithstanding the foregoing, LIBOR for the initial Interest Accrual
Period shall be 4.81229%. "Reuters Screen LIBOR01" means the display designated
on the Reuters Monitor Money Rates Service (or such other page as may replace
that page on that service for the purpose of displaying comparable rates or
prices).
"Liquidation Event" means, with respect to any Mortgage Loan (or
Serviced Loan Group), any of the following events: (i) such Mortgage Loan (or
Serviced Loan Group) is paid in full, (ii) a Final Recovery Determination is
made with respect to such Mortgage Loan (or Serviced Loan Group), or (iii) such
Mortgage Loan (or Serviced Loan Group) is otherwise liquidated, sold, disposed
or repurchased pursuant to the terms of this Agreement.
"Liquidation Expenses" means reasonable and direct expenses incurred
by the applicable Special Servicer on behalf of the Trust in connection with the
liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in
respect thereof including, without limitation, reasonable legal fees and
expenses, appraisal fees, committee or referee fees, property manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to disposition of the
Specially Serviced Mortgage Loan shall be (i) paid out of income from the
related REO Property, to the extent available, (ii) paid out of related proceeds
from liquidation or (iii) advanced by the applicable Master Servicer or the
applicable Special Servicer, subject to Section 4.4 and Section 4.6(d) hereof,
as a Servicing Advance.
"Liquidation Fee" means a fee equal to the product of (x) 1.00% and
(y) the Liquidation Proceeds received in connection with full or partial
liquidation of a Specially Serviced Mortgage Loan or related REO Property and
any Condemnation Proceeds or Insurance Proceeds received by the Trust (other
than Liquidation Proceeds received in connection with a Non-Trust Serviced Pari
Passu Loan, except as set forth in Section 2.3(a) hereof); provided, however,
that (A) in the case of a final disposition consisting of the repurchase of a
Mortgage Loan or REO Property by a Seller pursuant to Section 2.3, such fee will
only be paid by such Seller and due to the applicable Special Servicer if
repurchased after the date that is 180 days or more after the applicable Seller
receives notice of the breach or defect causing the repurchase; or (B) in the
case of a repurchase of a Mortgage Loan by the holder of a related Serviced
Companion Loan or a related mezzanine lender, such fee will only be due to the
applicable Special Servicer as provided for in the related Co-Lender Agreement
(and if permitted in the related Co-Lender Agreement) or, if not provided
therein, if repurchased more than 60 days after a Master Servicer, a Special
Servicer, the Paying Agent or the Trustee receives notice of the default causing
the repurchase.
"Liquidation Proceeds" means (i) with respect to the sale or
liquidation of a Mortgage Loan (or Serviced Loan Group, as applicable) or
related REO Property (other than pursuant to Section 2.3), the proceeds of such
sale or liquidation net of Liquidation Expenses (to the extent not otherwise
paid pursuant to Section 4.6(c)) (and with respect to the sale or liquidation of
any REO Property related to a Non-Trust Serviced Loan Group, any portion of such
amounts allocable to such Non-Trust Serviced Pari Passu Loan) and (ii) with
respect to the repurchase of a Mortgage Loan or an REO Mortgage Loan pursuant to
Section 2.3, the Purchase Price of such Mortgage Loan or REO Mortgage Loan (or
such allocable portion) at the time of such repurchase. With respect to the
Mortgaged Property securing a Serviced Loan Group, only the portion of such
amounts payable to the holder of the related Senior Mortgage Loan shall be
included in Liquidation Proceeds. With respect to a Non-Trust Serviced Loan
Group, the Liquidation Proceeds will include only the portion of such net
proceeds that is payable to the holder of the related Non-Trust Serviced Pari
Passu Loan pursuant to the related Other Pooling and Servicing Agreement.
"Liquidation Realized Loss" means, with respect to each Mortgage
Loan or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition (adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid
interest and interest accrued thereon at the applicable Mortgage Rate (including
interest accrued and unpaid on the portion of the Principal Balance added in
accordance with Section 6.6(c)(i), which interest shall accrue from the date of
the reduction in the Principal Balance resulting from the allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses
(including Additional Trust Expenses) incurred in connection with such Mortgage
Loan that are payable or reimbursable to any Person, other than amounts
previously treated as Expense Losses or included in the definition of
Liquidation Expenses minus the sum of (i) REO Income allocated as recoveries of
principal or interest on the related Mortgage Loan, and (ii) with respect to any
Mortgage Loan, Liquidation Proceeds, Late Collections and all other amounts
received from the related Mortgagor and received during the Collection Period in
which such Cash Liquidation or REO Disposition occurred (and, with respect to a
Serviced Loan Group, which are not required under the related Co-Lender
Agreement to be paid or reimbursable to the holders of the related Serviced
Companion Loans). REO Income and Liquidation Proceeds shall be applied first
against any Expense Losses (to the extent not included in the definition of
Liquidation Expenses) for such Mortgage Loan, the unpaid interest on the
Mortgage Loan, calculated as described in clause (B) above, and then against the
Principal Balance of such Mortgage Loan, calculated as described in clause (A)
above in accordance with Section 1.2(b) hereof.
"Loan Group" means either Loan Group 1 or Loan Group 2, as the case
may be.
"Loan Group 1" means all of the Mortgage Loans that are Loan Group 1
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 1 Mortgage Loan" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Loan Group 1 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 1.
"Loan Group 2" means all of the Mortgage Loans that are Loan Group 2
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 2 Mortgage Loan" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Loan Group 2 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 2.
"Loan Group Principal Distribution Amount" means the Loan Group 1
Principal Distribution Amount or the Loan Group 2 Principal Distribution Amount,
as applicable.
"Loan-to-Value Ratio" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the Principal Balance of such Mortgage Loan at the date of determination and
the denominator of which is the Appraised Value of the Mortgaged Property as
shown on the most recent Appraisal or valuation of the Mortgaged Property which
is available as of such date. With respect to a Serviced Loan Group, the
numerator of the Loan-to-Value Ratio shall include the related Senior Mortgage
Loan and the Serviced Companion Loans that are Pari Passu Loans but, unless
otherwise noted, shall not include the Serviced Companion Loans that are
Subordinate Loans.
"Lock-Box Account" has the meaning set forth in Section 8.3(g).
"Lock-Box Agreement" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer (or a Primary Servicer or Sub
Servicer on its behalf) pursuant to which a Lock-Box Account is created.
"Losses" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"Master Servicer" means: (a) with respect to any MSMCH Loan, any
GECC Loan, any PCFII Loan and any NatCity Loan, any REO Property acquired by the
Trust with respect to such Mortgage Loan and any matters relating to the
foregoing, the Capmark Master Servicer; (b) with respect to any RBC Loan and any
Nationwide Loan, any REO Property acquired by the Trust with respect to such
Mortgage Loan and any matters relating to the foregoing, the Xxxxx Fargo Master
Servicer; and (c) with respect to any NCB, FSB Loan, any REO Property acquired
by the Trust with respect to an NCB, FSB Loan and any matters relating to the
foregoing, the NCB Master Servicer.
"Master Servicer Remittance Date" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"Master Servicer's Floating Rate Account" means either the Class
A-MFL Master Servicer's Floating Rate Account or the Class A-JFL Master
Servicer's Floating Rate Account.
"Master Servicing Fee" means for each calendar month, as to each
Mortgage Loan (other than a Non-Trust Serviced Pari Passu Loan, as to which
there is no Master Servicing Fee payable to the Master Servicers) and Serviced
Companion Loan, an amount equal to the Master Servicing Fee Rate applicable to
such month (determined in the same manner (other than the rate of accrual) as
the applicable Mortgage Rate is determined for such Mortgage Loan or Serviced
Companion Loan, as the case may be, for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan or Serviced Companion Loan, as the case
may be, immediately before the Due Date occurring in such month, subject to
reduction in respect of Compensating Interest, as set forth in Section 8.10(c).
For the avoidance of doubt, Master Servicing Fees are in addition to Primary
Servicing Fees.
"Master Servicing Fee Rate" means, (i) with respect to each Mortgage
Loan (other than a Non-Trust Serviced Pari Passu Loan), the rate per annum
specified as such on the Mortgage Loan Schedule, and (ii) with respect to each
Serviced Companion Loan, a rate per annum to be agreed between the Depositor and
the applicable Master Servicer in consistent with the related Co-Lender
Agreement. With respect to a Non-Trust Serviced Pari Passu Loan, no Master
Servicing Fee Rate is charged by the Master Servicers, but the applicable Pari
Passu Loan Servicing Fee Rate is charged pursuant to the related Other Pooling
and Servicing Agreement.
"Material Breach" has the meaning set forth in Section 2.3(a).
"Material Document Defect" has the meaning set forth in Section
2.3(a).
"Maturity Date" means, with respect to any Mortgage Loan (or
Serviced Loan Group, as applicable), as of any date of determination, the date
on which the last payment of principal is due and payable thereunder, after
taking into account all Principal Prepayments received and any Deficient
Valuation, Debt Service Reduction Amount or modification of the Mortgage Loan
(or Serviced Loan Group, as the case may be) occurring prior to such date of
determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan (or Serviced Loan Group, as the case may be) or
(ii) any grace period permitted by such Mortgage Loan (or Serviced Loan Group,
as the case may be).
"MERS" means Mortgage Electronic Registration Systems, Inc.
"Modification Fee" means a fee, if any, collected in connection with
the modification of a Mortgage Loan (or Serviced Loan Group, as applicable).
"Modification Loss" means, with respect to each Mortgage Loan (or
Serviced Loan Group, as applicable) (i) a decrease in the Principal Balance of
such Mortgage Loan, as a result of a modification thereof in accordance with the
terms hereof, (ii) any expenses connected with such modification, to the extent
(x) reimbursable to the Trustee, the applicable Special Servicer or the
applicable Master Servicer and (y) not recovered from the Mortgagor or (iii) in
the case of a modification of such Mortgage Loan that reduces the Mortgage Rate
thereof, the excess, on each Due Date, of the amount of interest that would have
accrued at a rate equal to the original Mortgage Rate, over interest that
actually accrued on such Mortgage Loan (or Serviced Loan Group, as the case may
be) during the preceding Collection Period.
"Money Term" means, with respect to any Mortgage Loan (or Serviced
Loan Group, as applicable), the Maturity Date, Mortgage Rate, Principal Balance,
amortization term or payment frequency thereof, or the amount of the scheduled
payment thereof, or any provision thereof requiring the payment of a prepayment
premium, yield maintenance payment or percentage premium in connection with a
principal prepayment (and shall not include late fees or default interest
provisions).
"Monthly Certificateholders Report" means a report provided pursuant
to Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the date of such Distribution Date and of the Record
Date, Interest Accrual Period and Determination Date for such Distribution Date;
(ii) the Available Distribution Amount for the Distribution Date, and any other
cash flows received on the Mortgage Loans and applied to pay fees and expenses
(including the components of the Available Distribution Amount or such other
cash flows); (iii) the aggregate amount of servicing fees, Special Servicing
Fees, other special servicing compensation and Trustee Fees paid to the Master
Servicers, the Special Servicers, the Paying Agent and the Trustee, as
applicable, with respect to the Mortgage Pool and with respect to each Loan
Group and, with respect to a Non-Trust Serviced Pari Passu Loan and only to the
extent that such information is provided to the Trustee by another party, the
fees paid to the related Other Master Servicer and the related Other Special
Servicer; (iv) the amount of other fees and expenses accrued and paid from the
Trust Fund, including without limitation Advance reimbursement and interest on
Advances, and specifying the purpose of such fees or expenses and the party
receiving payment of those amounts, if applicable; (v) the amount, if any, of
such distributions to the holders of each Class of Principal Balance
Certificates applied to reduce the respective Certificate Balances thereof; (vi)
the amount of such distribution to holders of each Class of Certificates
allocable to (A) interest accrued (including Excess Interest) at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums or Yield Maintenance Charges (including Prepayment
Premiums or Yield Maintenance Charges distributed in respect of the Floating
Rate Regular Interests and paid to the Swap Counterparty); (vii) the amount of
any shortfall in principal distributions and any shortfall in interest
distributions to each applicable Class of Certificates; (viii) the amount of
excess cash flow, if any distributed to the holder of the Residual Certificates;
(ix) the Weighted Average REMIC I Net Mortgage Rate (and interest rates by
distributional groups or ranges) of the Mortgage Loans as of the related
Determination Date; (x) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans at the close of business on such Determination Date, with respect to the
Mortgage Pool and with respect to each Loan Group; (xi) the number and aggregate
Scheduled Principal Balance of Mortgage Loans, with respect to the Mortgage Pool
and with respect to each Loan Group (A) delinquent 30-59 days, (B) delinquent
60-89 days, (C) delinquent 90 or more days, (D) as to which foreclosure
proceedings have been commenced, or (E) as to which bankruptcy proceedings have
been commenced; (xii) the number and related Principal Balances of any Mortgage
Loans modified, extended or waived on a loan-by-loan basis since the previous
Determination Date (including a description of any modifications, extensions or
waivers to mortgage loan terms, fees, penalties or payments during the
distribution period as provided to the Paying Agent); (xiii) with respect to any
REO Property included in the Trust, the Principal Balance of the related
Mortgage Loan as of the date of acquisition of the REO Property and the
Scheduled Principal Balance thereof; (xiv) as of the related Determination Date
(A) as to any REO Property sold during the related Collection Period, the date
of the related determination by the applicable Special Servicer that it has
recovered all payments which it expects to be finally recoverable and the amount
of the proceeds of such sale deposited into the Certificate Account, and (B) the
aggregate amount of other revenues collected by each Special Servicer with
respect to each REO Property during the related Collection Period and credited
to the Certificate Account, in each case identifying such REO Property by the
loan number of the related Mortgage Loan; (xv) the Aggregate Certificate Balance
or Notional Amount, as the case may be, of each Class of Certificates before and
after giving effect to the distribution made on such Distribution Date; (xvi)
the aggregate amount of Principal Prepayments made during the related Collection
Period with respect to the Mortgage Pool and with respect to each Loan Group;
(xvii) the Pass-Through Rate applicable to each Class of Certificates for such
Distribution Date; (xviii) the amount of Unpaid Interest, Realized Losses or
Expense Losses, if any, incurred with respect to the Mortgage Loans, including a
breakout by type of such Realized Losses or Expense Losses, with respect to the
Mortgage Pool and with respect to each Loan Group; (xix) the aggregate amount of
Servicing Advances and P&I Advances outstanding separately stated that have been
made by the applicable Master Servicer, the applicable Special Servicer and the
Trustee, with respect to the Mortgage Pool and with respect to each Loan Group
and the aggregate amount of servicing advances made by the related Other Master
Servicer in respect of a Non-Trust Serviced Loan Group (to the extent such
information has been provided to the Paying Agent or the Trustee by a third
party); (xx) the amount of any Appraisal Reductions effected during the related
Collection Period on a loan-by-loan basis and the total Appraisal Reductions in
effect as of such Distribution Date, with respect to the Mortgage Pool and with
respect to each Loan Group (and in the case of a Non-Trust Serviced Pari Passu
Loan, the amount of any appraisal reductions effected under the related Other
Pooling and Servicing Agreement to the extent such information has been provided
to the Paying Agent or the Trustee by a third party); (xxi) any Material
Breaches of Mortgage Loan representations and warranties of which the Trustee,
any Master Servicer or any Special Servicer has received written notice; (xxii)
material breaches of any covenants under this Agreement of which the Trustee,
any Master Servicer or any Special Servicer has received written notice; (xxiii)
if applicable to any transaction, information regarding any tests used for
determining early amortization, liquidation or other performance trigger and
whether the trigger was met; (xxiv) the identification of any Rating Agency
Trigger Event or Swap Default as of the close of business on the last day of the
immediately preceding calendar month with respect to each Swap Transaction
(including, if applicable, the notice required by Section 6.12); (xxv) the
amount of any (1) payment by the Swap Counterparty as a termination payment, (2)
payment to any successor interest rate swap counterparty to acquire a
replacement interest rate swap agreement, and (3) collateral posted in
connection with any Rating Agency Trigger Event; (xxvi) the amount of and
identification of any payments on each Class of Floating Rate Certificates in
addition to the amount of principal and interest due thereon, such as any
payment received in connection with the related Swap Transaction or any payment
of a Prepayment Premium after the termination of the related Swap Transaction
that is required to be distributed on the related Class of Floating Rate
Certificates pursuant to the terms of this Agreement; and (xxviii) as determined
and/or approved by the Depositor, any other information necessary to satisfy the
requirements of Item 1121(a) of Regulation AB that can, in the Paying Agent's
reasonable judgment, be included on the Monthly Certificateholders Report
without undue difficulty. In the case of information furnished pursuant to
subclauses (v), (vi) and (xv) above, the amounts shall be expressed in the
aggregate and as a dollar amount per $1,000 of original principal amount of the
Certificates for all Certificates of each applicable Class.
"Xxxxx'x" means Xxxxx'x Investors Services, Inc.
"Mortgage" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"Mortgage File" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed by an allonge attached thereto or endorsed in blank or endorsed
"Pay to the order of LaSalle Bank National Association, as Trustee for the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a
lost note affidavit and indemnity with a copy of the Mortgage Note
attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's
office, with evidence of recording thereon (if recording is customary in
the jurisdiction in which such power of attorney was executed) or
certified by a title insurance company or escrow company to be a true copy
thereof; provided that if such original Mortgage cannot be delivered with
evidence of recording thereon on or prior to the 90th day following the
Closing Date because of a delay caused by the public recording office
where such original Mortgage has been delivered for recordation or because
such original Mortgage has been lost, the Depositor shall deliver or cause
to be delivered to the Custodian on behalf of the Trustee a true and
correct copy of such Mortgage, together with (A) in the case of a delay
caused by the public recording office, an Officer's Certificate of the
applicable Seller stating that such original Mortgage has been sent to the
appropriate public recording official for recordation or (B) in the case
of an original Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
Mortgage is recorded that such copy is a true and complete copy of the
original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if
any, with, if applicable, evidence of recording thereon (which are
reflected in the Mortgage Loan Schedule), or if such original
modification, consolidation and extension agreements have been delivered
to the appropriate recording office for recordation and either have not
yet been returned on or prior to the 90th day following the Closing Date
with evidence of recordation thereon or have been lost after recordation,
true copies of such modifications, consolidations and extensions certified
by the applicable Seller together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the applicable
Seller stating that such original modification, consolidation or extension
agreement has been dispatched or sent to the appropriate public recording
official for recordation or (B) in the case of an original modification,
consolidation or extension agreement that has been lost after recordation,
a certification by the appropriate county recording office where such
document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording
information not yet available if the instrument being recorded has not
been returned from the applicable recording office), signed by the holder
of record in blank or in favor of "LaSalle Bank National Association, as
Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16" (or, in the case of
a Non-Trust Serviced Pari Passu Loan, in favor of the related Other
Trustee pursuant to the related Other Pooling and Servicing Agreement);
provided that, if the related Mortgage has been recorded in the name of
MERS or its designee, no related Assignment of Mortgage in favor of the
Trustee will be required to be recorded or delivered and instead, the
applicable Seller pursuant to the applicable Mortgage Loan Purchase
Agreement shall take all actions as are necessary to cause the Trustee, on
behalf of the Certificateholders, to be shown as, and shall deliver
evidence of any such transfers to the Master Servicers and the Special
Servicers, and the Custodian on behalf of the Trustee shall take all
actions necessary to confirm that it is shown as, the owner of the related
Mortgage on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS;
(v) originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage
certified by the applicable Seller, or in the case of an original blanket
intervening assignment of Mortgage retained by the applicable Seller, a
copy thereof certified by the applicable Seller or, if any original
intervening assignment of Mortgage has not yet been returned on or prior
to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with
(A) in the case of a delay caused by the public recording office, an
Officer's Certificate of the applicable Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original
intervening assignment of Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
assignment is recorded that such copy is a true and complete copy of the
original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of
recording thereon or certified by a title insurance company or escrow
company to be a true copy thereof; provided that or, if such Assignment of
Leases has not been returned on or prior to the 90th day following the
Closing Date because of a delay caused by the applicable public recording
office where such Assignment of Leases has been delivered for recordation
or because such original Assignment of Leases has been lost, the Seller
shall deliver or cause to be delivered to the Trustee a true and correct
copy of such Assignment of Leases submitted for recording, together with,
(A) in the case of a delay caused by the public recording office, an
Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Assignment of
Leases that has been lost after recordation, a certification by the
appropriate county recording office where such Assignment of Leases is
recorded that such copy is a true and complete copy of the original
recorded Assignment of Leases, in each case together with an original
assignment of such Assignment of Leases, in recordable form (except for
recording information not yet available if the instrument being recorded
has not been returned from the applicable recording office), signed by the
holder of record in blank or in favor of "LaSalle Bank National
Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16," which
assignment may be effected in the related Assignment of Mortgage (or, in
the case of a Non-Trust Serviced Pari Passu Loan, in favor of the related
Other Trustee pursuant to the related Other Pooling and Servicing
Agreement); provided that, if the related Assignment of Leases has been
recorded in the name of MERS or its designee, no Assignment of Leases or
assignment of Assignment of Leases in favor of the Trustee will be
required to be recorded or delivered and instead, the applicable Seller
pursuant to the applicable Mortgage Loan Purchase Agreement shall take all
actions as are necessary to cause the Trustee, on behalf of the
Certificateholders, to be shown as, and shall deliver evidence of any such
transfers to the Master Servicers and the Special Servicers, and the
Custodian on behalf of the Trustee shall take all actions necessary to
confirm that it is shown as, the owner of the related Assignment of Leases
on the records of MERS for purposes of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS;
(vii) the original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide
any of the foregoing pursuant to binding escrow instructions executed by
the title company or its authorized agent, with the original Title
Insurance Policy to follow within 180 days of the Closing Date, or a copy
of any of the foregoing certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date, or a
preliminary title report with the original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B)
UCC-2 or UCC-3 financing statements assigning such UCC financing
statements to the Trustee (or, in the case of a Non-Trust Serviced Pari
Passu Loan, to the related Other Trustee) executed and delivered in
connection with the Mortgage Loan; provided that, if the related Mortgage
Loan has been recorded in the name of MERS or its designee, no UCC, UCC-2
or UCC-3 financing statement in favor of the Trustee will be required to
be recorded or delivered and instead, the applicable Seller pursuant to
the applicable Mortgage Loan Purchase Agreement shall take all actions as
are necessary to cause the Trustee, on behalf of the Certificateholders,
to be shown as, and shall deliver evidence of any such transfers to the
Master Servicers and the Special Servicers, and the Custodian on behalf of
the Trustee shall take all actions necessary to confirm that the Trustee
is shown as, the secured party on the related UCC financing statements on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease
and there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan (including,
without limitation, the Co-Lender Agreement);
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be assigned to the
Trustee (and delivered to the Custodian on behalf of the Trustee) on
behalf of the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in accordance
with documents evidencing or securing the applicable Mortgage Loan, this
Agreement and the applicable Primary Servicing Agreement or, (B) the
original of each letter of credit, if any, constituting additional
collateral for such Mortgage Loan (other than letters of credit
representing tenant security deposits which have been collaterally
assigned to the lender), which shall be held by the applicable Primary
Servicer (or the applicable Master Servicer) on behalf of the Trustee and
applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, this Agreement and
the applicable Primary Servicing Agreement (it being understood that each
Seller has agreed (a) that the proceeds of such letter of credit belong to
the Trust, (b) to notify, on or before the Closing Date, the bank issuing
the letter of credit that the letter of credit and the proceeds thereof
belong to the Trust, and to use reasonable efforts to obtain within 30
days (but in any event to obtain within 90 days) following the Closing
Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any
liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the
case of clause (B) above, each Primary Servicer (and the applicable Master
Servicer) acknowledges that any letter of credit held by it shall be held
in its capacity as agent of the Trust, and if a Primary Servicer or a
Master Servicer, as applicable, sells its rights to service the applicable
Mortgage Loan, the applicable Primary Servicer or a Master Servicer, as
applicable, will assign the applicable letter of credit to the Trust or at
the direction of the applicable Special Servicer to such party as such
Special Servicer may instruct, in each case, at the expense of the Primary
Servicer or a Master Servicer, as applicable. The Primary Servicer (or the
applicable Master Servicer) shall indemnify the Trust for any loss caused
by the ineffectiveness of such assignment;
(xiii) the original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(xiv) copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans
with a Cut-Off Date Principal Balance equal to or greater than
$20,000,000;
(xv) the original of any Environmental Insurance Policy or if the
original is held by the related borrower, a copy thereof;
(xvi) a copy of any affidavit and indemnification agreement in favor
of the lender;
(xvii) with respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents; and
(xviii) with respect to a Non-Trust Serviced Pari Passu Loan, a copy
of the related Other Pooling and Servicing Agreement.
With respect to a Non-Trust Serviced Pari Passu Loan, the preceding
document delivery requirements will be met by the delivery by the Depositor of
copies of the documents specified above (other than the Mortgage Note (and all
intervening endorsements) evidencing such Non-Trust Serviced Pari Passu Loan,
with respect to which the originals shall be required), including a copy of the
related Mortgage.
Notwithstanding the foregoing, in the event that the Custodian
already holds the related document set forth in the above delivery requirements,
such document delivery requirements shall be deemed to be met and no new
delivery shall be required hereunder.
"Mortgage Loan" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3. Mortgage Loan
shall also include any Defeasance Loan, any REO Mortgage Loan and for the
avoidance of doubt, each Senior Mortgage Loan of a Serviced Loan Group (but not
any Serviced Companion Loan), unless the context requires otherwise.
"Mortgage Loan Purchase Agreement" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III, Mortgage Loan Purchase Agreement IV, Mortgage Loan Purchase
Agreement V and Mortgage Loan Purchase Agreement VI, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain Mortgage
Loan Purchase Agreement between MSMCH and the Depositor dated as of November 1,
2007 with respect to the MSMCH Loans, a form of which is attached hereto as
Exhibit K-1.
"Mortgage Loan Purchase Agreement II" means that certain Mortgage
Loan Purchase Agreement between GECC and the Depositor dated as of November 1,
2007 with respect to the GECC Loans, a form of which is attached hereto as
Exhibit K-2.
"Mortgage Loan Purchase Agreement III" means that certain Mortgage
Loan Purchase Agreement between PCFII and the Depositor dated as of November 1,
2007 with respect to the PCFII Loans, a form of which is attached hereto as
Exhibit K-3.
"Mortgage Loan Purchase Agreement IV" means that certain Mortgage
Loan Purchase Agreement between RBC and the Depositor dated as of November 1,
2007 with respect to the RBC Loans, a form of which is attached hereto as
Exhibit K-4.
"Mortgage Loan Purchase Agreement V" means that certain Mortgage
Loan Purchase Agreement between NatCity and the Depositor dated as of November
1, 2007 with respect to the NatCity Loans, a form of which is attached hereto as
Exhibit K-5.
"Mortgage Loan Purchase Agreement VI" means that certain Mortgage
Loan Purchase Agreement between NCB, FSB and the Depositor dated as of November
1, 2007 with respect to the NCB, FSB Loans, a form of which is attached hereto
as Exhibit K-6.
"Mortgage Loan Purchase Agreement VII" means that certain Mortgage
Loan Purchase Agreement between Nationwide and the Depositor dated as of
November 1, 2007 with respect to the Nationwide Loans, a form of which is
attached hereto as Exhibit K-7.
"Mortgage Loan Schedule" or "Loan Schedule" means collectively the
schedule attached hereto as Schedule I, which identifies each MSMCH Loan, the
schedule attached hereto as Schedule II, which identifies each GECC Loan, the
schedule attached hereto as Schedule III, which identifies each PCFII Loan, the
schedule attached hereto as Schedule IV, which identifies each RBC Loan, the
schedule attached hereto as Schedule V, which identifies each NatCity Loan, the
schedule attached hereto as Schedule VI, which identifies each NCB, FSB Loan,
and the schedule attached hereto as Schedule VI-2, which identifies each
Nationwide Loan, as such schedules may be amended from time to time pursuant to
Section 2.3.
"Mortgage Note" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool" means all of the Mortgage Loans and any successor
REO Mortgage Loans, collectively.
"Mortgage Rate" means, for a given Mortgage Loan (or Serviced Loan
Group, as applicable), the per annum rate at which interest accrues on such
Mortgage Loan (or Serviced Loan Group, as the case may be).
"Mortgaged Property" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan (or Serviced Loan Group, as applicable).
"Mortgagee" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"Mortgagor" means the obligor on a Mortgage Note.
"MSMCH" has the meaning assigned in the Preliminary Statement
hereto.
"MSMCH Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"MSMCH Trust Assets" means the MSMCH Loans, any REO Properties
acquired by the Trust with respect to the MSMCH Loans and any and all other
related assets of the Trust.
"NatCity" has the meaning assigned in the Preliminary Statement
hereto.
"NatCity Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement V and shown on
Schedule V hereto.
"NatCity Trust Assets" means the NatCity Loans, any REO Properties
acquired by the Trust with respect to the NatCity Loans and any and all other
related assets of the Trust.
"Nationwide" has the meaning assigned in the Preliminary Statement
hereto.
"Nationwide Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement VII and shown on
Schedule VI-2 hereto.
"Nationwide Trust Assets" means the Nationwide Loans, any REO
Properties acquired by the Trust with respect to the Nationwide Loans and any
and all other related assets of the Trust.
"NCB, FSB" has the meaning assigned in the Preliminary Statement
hereto.
"NCB, FSB Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement VI and shown on
Schedule VI hereto.
"NCB, FSB Subordinate Debt Conditions" means, with respect to a
Mortgagor encumbering a Mortgaged Property relating to a Co-op Mortgage Loan
with a subordinate mortgage, the following conditions: (i) each of the loans, or
the sole loan, to be secured by each such subordinate mortgage is made by NCB,
FSB or any Affiliate thereof, (ii) each such subordinate mortgage is expressly
subject and subordinate to the lien of the Mortgage encumbering the Mortgaged
Property in question, (iii) each such subordinate mortgage is expressly made in
compliance with the underwriting standards which NCB, FSB customarily employs in
connection with making subordinate mortgages for its own mortgage loan
portfolio, (iv) as of the date of the closing of the subordinate mortgage loan
in question, the New Loan-to-Value Ratio (as defined below) does not exceed 40%,
(v) NCB, FSB or any Affiliate thereof that originates the subordinate mortgage
loan, executes and delivers to the Trustee for inclusion in the Mortgage File a
subordination agreement with respect to such subordinate mortgage in
substantially the form of Exhibit T hereto (provided that the Trustee shall have
no responsibility for determining the sufficiency or validity thereof), (vi) if
the subordinate mortgage loan will not be a fully amortizing loan, the stated
maturity date of the subordinate mortgage loan shall be no earlier than the
maturity date of the related Co-op Mortgage Loan, (vii) the subordinate mortgage
loan shall have interest payable on a current basis, with no deferral, (viii)
the subordinate mortgage loan is made principally for the purpose of funding
capital expenditures, major repairs or reserves at or with respect to the
Mortgaged Property in question and (ix) the aggregate amount of subordinate debt
encumbering the Mortgaged Property in question does not exceed $7,500,000. For
purposes of this definition, and notwithstanding anything herein to the
contrary: "Mortgage Debt" shall mean the sum of (x) the aggregate outstanding
principal balance of all loans secured by one or more mortgages then encumbering
the Mortgaged Property in question (including the related Co-op Mortgage Loan
and any then existing subordinate mortgage loans) and (y) the principal amount
of the proposed new subordinate mortgage loan; "New Loan-to-Value Ratio" shall
mean, as of any date for any Co-op Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Mortgage Debt for the related
Mortgaged Property on such date, and the denominator of which is the Appraised
Value of the related Mortgaged Property; and "Appraised Value" shall be based on
an MAI appraisal of the applicable Mortgaged Property made, in conformance with
NCB, FSB's customary underwriting requirements, not more than one year prior to
the origination date of the related Co-op Mortgage Loan and reviewed by the NCB
Master Servicer.
"NCB, FSB Trust Assets" means the NCB, FSB Loans, any REO Properties
acquired by the Trust with respect to the NCB, FSB Loans and any and all other
related assets of the Trust.
"NCB Master Servicer" means NCB, FSB and its permitted successors or
assigns.
"NCB Master Servicer's Website" has the meaning set forth in Section
8.14 hereof.
"Net Aggregate Prepayment Interest Shortfall" means, for any
Distribution Date and each Master Servicer, the excess of all Prepayment
Interest Shortfalls incurred in respect of all (or, where specified, a portion)
of the Mortgage Loans serviced by such Master Servicer (including Specially
Serviced Mortgage Loans) during any Collection Period over the sum of (A) the
Compensating Interest to be paid by such Master Servicer (or any Primary
Servicer or Sub-Servicer, if applicable according to the related Primary
Servicing Agreement or Sub-Servicing Agreement) on such Distribution Date and
(B) the aggregate Prepayment Interest Excesses during such Collection Period for
such Master Servicer's Mortgage Loans (including Specially Serviced Mortgage
Loans). Prepayment Interest Shortfalls and Prepayment Interest Excesses will be
separately accounted for by each of the Master Servicers.
"Net Swap Payment" has the meaning set forth in Section 8.31(g).
"New Lease" means any lease of any REO Property entered into on
behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"NMWHFIT" has the meaning set forth in Section 12.5.
"Non-Investment Grade Certificates" means each Class of Certificates
other than a Residual Certificate or a Class EI Certificate that, at the time of
determination, is not rated in one of the four highest generic rating categories
by at least S&P or Fitch.
"Non-Registered Certificate" means unless and until registered under
the Securities Act, any Class X-1, Class X-2, 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 EI or Residual Certificate.
"Nondisqualification Opinion" means a written Opinion of Counsel to
the effect that a contemplated action (i) will neither cause any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust, and
(ii) will not cause the Class EI Grantor Trust or either Floating Rate Grantor
Trust to fail to qualify as a grantor trust.
"Noneconomic Residual Interest" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulations
Section 1.860E-1(c).
"Nonrecoverable Advance" means the portion of any Advance (including
interest accrued thereon at the Advance Rate) or Unliquidated Advance (not
including interest thereon) previously made (or, in the case of an Unliquidated
Advance, not reimbursed to the Trust) or proposed to be made by a Master
Servicer, a Special Servicer or the Trustee that, in its respective sole
discretion, exercised in good faith and, with respect to such Master Servicer
and such Special Servicer, in accordance with the Servicing Standard, will not
be or, in the case of a current delinquency, would not be, ultimately
recoverable, from Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or Purchase Proceeds (or from any other collections) with respect to
the related Mortgage Loan or REO Property (or, in the case of Servicing Advances
(but not P&I Advances), the related Serviced Companion Loan), as evidenced by an
Officer's Certificate delivered pursuant to Section 4.4. With respect to each
Mortgage Loan that is cross-collateralized by Mortgaged Properties securing
other Mortgage Loans, all of such Mortgaged Properties and other security must
be considered in connection with any determination of whether an Advance or
Unliquidated Advance is a Nonrecoverable Advance. Such Officer's Certificate
shall be delivered to the Trustee (upon which the Trustee may conclusively rely)
or to the Depositor (if the Trustee is delivering such Officer's Certificate)
and (in either case) to the applicable Special Servicer and the Paying Agent, in
the time periods as specified in Section 4.4 and shall include the information
and reports set forth in Section 4.4. Absent bad faith, the applicable Master
Servicer's determination as to the nonrecoverability of any Advance shall be
conclusive and binding on the Certificateholders (and, in the case of a Serviced
Companion Loan, the holder of such Serviced Companion Loan) and may, in all
cases, be relied on by the Trustee; provided, however, that the applicable
Special Servicer may, at its option, make a determination in accordance with the
Servicing Standard that any P&I Advance or Servicing Advance, if made, would be
a Nonrecoverable Advance and shall deliver to the applicable Master Servicer and
the Trustee notice of such determination. Any such determination shall be
conclusive and binding on the applicable Master Servicer and the Trustee;
provided, however, the applicable Special Servicer shall have no such right to
make an affirmative determination that any P&I Advance is or would be
recoverable and, in the absence of a determination by such Special Servicer that
such Advance is or would be a Nonrecoverable Advance, the decision that a P&I
Advance is recoverable shall remain with the applicable Master Servicer or
Trustee, as applicable. Absent bad faith, such determination by a Special
Servicer shall be conclusive and binding on the Certificateholders (and, in the
case of a Serviced Companion Loan, the holder of such Serviced Companion Loan),
the Master Servicers and the Trustee. None of the Master Servicers, the Special
Servicers or the Trustee will be obligated to make any Advance that, in its
judgment (in the case of the Master Servicers and the Special Servicers, in
accordance with the Servicing Standard, and in the case of the Trustee, in
accordance with its good faith business judgment), would not ultimately be
recoverable out of collections on the related Mortgage Loan. Absent bad faith or
breach of the servicing standard under the related Other Pooling and Servicing
Agreement known to the applicable Master Servicer or the Trustee, as applicable,
the determination as to the nonrecoverability of any principal and interest
advance made or proposed to be made with respect to a Non-Trust Serviced
Companion Loan pursuant to the related Other Pooling and Servicing Agreement,
shall be conclusive and binding on the Certificateholders and may, in all cases,
be relied on by the Trustee and the applicable Master Servicer unless the
Trustee or the applicable Master Servicer, as the case may be, has been advised
by the related Other Trustee or the related Other Master Servicer that the party
who made such nonrecoverability determination no longer has the required rating
under the related Other Pooling and Servicing Agreement. In making any
nonrecoverability determination as described above, the relevant party shall be
entitled (i) to consider (among other things) the obligations of the Mortgagor
under the terms of the Mortgage Loan as it may have been modified, (ii) to
consider (among other things) the related Mortgaged Properties in their "as is"
then-current conditions and occupancies and such party's assumptions (consistent
with the Servicing Standard in the case of the applicable Master Servicer or the
applicable Special Servicer) regarding the possibility and effects of future
adverse change with respect to such Mortgaged Properties, (iii) to estimate and
consider, consistent with the Servicing Standard in the case of the applicable
Master Servicer or the applicable Special Servicer (among other things), future
expenses, (iv) to estimate and consider, consistent with the Servicing Standard
in the case of the applicable Master Servicer or the applicable Special Servicer
(among other things), the timing of recovery to such party and (v) to consider
the amount of any deferred Advances outstanding. In addition, the relevant party
may, consistent with the Servicing Standard in the case of the applicable Master
Servicer or the applicable Special Servicer, update or change its
nonrecoverability determinations at any time in accordance with the terms hereof
and may, consistent with the Servicing Standard in the case of the applicable
Master Servicer or the applicable Special Servicer, obtain from the applicable
Special Servicer any analysis, appraisals or other information in the possession
of such Special Servicer for such purposes.
"Non-Trust Serviced Companion Loan" means a pari passu or
subordinate note related to a Non-Trust Serviced Pari Passu Loan.
"Non-Trust Serviced Loan Group" means, with respect to a Non-Trust
Serviced Pari Passu Loan, collectively, such Non-Trust Serviced Pari Passu Loan
and the related Non-Trust Serviced Companion Loan(s).
"Non-Trust Serviced Pari Passu Loan" means any of the Mortgage Loans
designated on the Mortgage Loan Schedule as "60 Wall Street," "USFS Industrial
Distribution Portfolio" or "Easton Town Center."
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class X-1 Certificates as a Class, the Class X-1 Notional
Amount as of such date of determination; (ii) with respect to any Class X-1
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-2 Certificates as a Class, the Class
X-2 Notional Amount as of such date of determination and (iv) with respect to
any Class X-2 Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-2 Notional Amount of such date of
determination.
"Officer's Certificate" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the applicable Master Servicer(s) and the applicable Special
Servicer(s), any of the officers referred to above or an employee thereof
designated as a Servicing Officer or Special Servicing Officer pursuant to this
Agreement, (x) in the case of the Trustee, a certificate signed by a Responsible
Officer, (y) in the case of a Seller, a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, any Managing Director or Director, the
President, or any Executive Vice President, Senior Vice President, Second Vice
President, Vice President or Assistant Vice President, any Treasurer, any
Assistant Treasurer or any Secretary or Assistant Secretary or any other
authorized signatory and (z) in the case of the Paying Agent, a certificate
signed by a Responsible Officer, each with specific responsibilities for the
matters contemplated by this Agreement.
"Operating Adviser" shall have the meaning specified in Section
9.37(a).
"Opinion of Counsel" means a written opinion of counsel addressed to
the applicable Master Servicer (and/or any Primary Servicer acting on behalf of
such Master Servicer), the applicable Special Servicer, or the Trustee and the
Paying Agent, as applicable, reasonably acceptable in form and substance to such
Master Servicer (and/or any Primary Servicer acting on behalf of such Master
Servicer), such Special Servicer, or the Trustee and the Paying Agent, as
applicable, and who is not in-house counsel to the party required to deliver
such opinion but who, in the good faith judgment of such Master Servicer (and/or
any Primary Servicer acting on behalf of such Master Servicer), such Special
Servicer, or the Trustee and the Paying Agent, as applicable, is Independent
outside counsel knowledgeable of the issues occurring in the practice of
securitization with respect to any such opinion of counsel concerning the
taxation, or status as a REMIC for tax purposes, of any REMIC Pool or status as
a "grantor trust" under the Grantor Trust Provisions of the Class EI Grantor
Trust or either Floating Rate Grantor Trust.
"Option" shall have the meaning specified in Section 9.36(a).
"Option Holder" shall have the meaning specified in Section 9.36(a).
"Option Purchase Price" shall have the meaning specified in Section
9.36(b).
"Other Master Servicer" means, with respect to a Non-Trust Serviced
Pari Passu Loan, the master servicer for the related Non-Trust Serviced Loan
Group under the applicable Other Pooling and Servicing Agreement.
"Other Paying Agent" means, with respect to a Non-Trust Servicing
Pari Passu Loan, the paying agent, certificate administrator and/or tax
administrator under the related Other Pooling and Servicing Agreement.
"Other Pooling and Servicing Agreement" means a pooling and
servicing agreement relating to a Non-Trust Serviced Companion Loan or a
Serviced Companion Loan that creates a commercial mortgage securitization trust,
as applicable.
"Other Securitization" means a commercial mortgage securitization,
into which a Non-Trust Serviced Companion Loan or a Serviced Companion Loan is
deposited.
"Other Special Servicer" means, with respect to a Non-Trust Serviced
Pari Passu Loan, the special servicer for the related Non-Trust Serviced Loan
Group under the related Other Pooling and Servicing Agreement.
"Other Trustee" means, with respect to a Non-Trust Serviced Pari
Passu Loan, the trustee under the related Other Pooling and Servicing Agreement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (net of the related Master Servicing Fees, Excess Servicing Fees,
Primary Servicing Fees and other servicing fees payable from such Scheduled
Payment), other than a Balloon Payment or any default interest, due during the
related Collection Period was not received by the applicable Master Servicer as
of the related Determination Date (subject to Section 5.1(h)), the portion of
such Scheduled Payment not received; (ii) with respect to any Balloon Mortgage
Loan (including any REO Mortgage Loan which provided for a Balloon Payment) as
to which a Balloon Payment was due or deemed due during or prior to the related
Collection Period but was delinquent, in whole or in part, as of the related
Determination Date, an amount equal to the excess, if any, of the Assumed
Scheduled Payment (net of the related Master Servicing Fee, Excess Servicing
Fees, Primary Servicing Fees and other master or primary servicing fees payable
from such Assumed Scheduled Payment) for such Balloon Mortgage Loan for the
related Collection Period, over any Late Collections received in respect of such
Balloon Payment during such Collection Period; and (iii) with respect to each
REO Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the REO Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the applicable
Master Servicer by the applicable Special Servicer, reduced by any amounts
required to be paid as taxes on such REO Income (including taxes imposed
pursuant to Section 860G(c) of the Code); provided, however, that the Scheduled
Payment or Assumed Scheduled Payment for any Mortgage Loan or REO Mortgage Loan
which has been modified shall be calculated based on its terms as modified and
provided, further, that the interest portion amount of any P&I Advance with
respect to a Mortgage Loan as to which there has been an Appraisal Reduction
shall be an amount equal to the product of (i) the amount with respect to
interest required to be advanced without giving effect to this proviso and (ii)
a fraction, the numerator of which is the Scheduled Principal Balance of such
Mortgage Loan as of the immediately preceding Determination Date less any
Appraisal Reduction applicable to such Mortgage Loan (or, in the case of a
Senior Mortgage Loan of a Serviced Loan Group, after such Appraisal Reduction
has been allocated to the holders of the related Serviced Companion Loans that
are Subordinate Loans or simultaneously with the allocation of such Appraisal
Reduction to the related Serviced Companion Loans that are Pari Passu Loans) and
the denominator of which is the Scheduled Principal Balance of such Mortgage
Loan as of such Determination Date.
"P&I Advance Amount" means the amount of the P&I Advance computed
for any Distribution Date.
"Pari Passu Loan" means, with respect to a Serviced Loan Group, a
related Serviced Companion Loan that is pari passu in priority with the related
Senior Mortgage Loan.
"Pari Passu Loan Nonrecoverable Servicing Advance" means the pro
rata portion of any "Nonrecoverable Servicing Advance" (or an analogous term
thereto) (as defined in the related Other Pooling and Servicing Agreement)
allocable to a Non-Trust Serviced Pari Passu Loan pursuant to and in accordance
with the related Other Pooling and Servicing Agreement.
"Pari Passu Loan Servicing Fee Rate" means, with respect to a
Non-Trust Serviced Pari Passu Loan, the servicing fee rate applicable to such
Non-Trust Serviced Pari Passu Loan pursuant to the related Other Pooling and
Servicing Agreement.
"Participant" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"Pass-Through Rate" or "Pass-Through Rates" means with respect to
any Class of REMIC I Regular Interest, REMIC II Regular Interest, REMIC Regular
Certificates, Floating Rate Certificates or Floating Rate Regular Interest, for
the first Distribution Date, the rate set forth in the Preliminary Statement
hereto. For any Distribution Date occurring thereafter, the Pass-Through Rates
for (i) Regular Interests shall equal their respective REMIC I Net Mortgage
Rates, (ii) the REMIC II Regular Interests shall equal the Weighted Average
REMIC I Net Mortgage Rate, (iii) the Class A-1, Class A-2, Class A-3 and Class
A-4 Certificates shall equal the fixed rate corresponding to each such Class set
forth in the Preliminary Statement hereto; (iv) the Class A-1A Certificates
shall equal the fixed rate corresponding to each such Class set forth in the
Preliminary Statement hereto subject to a cap equal to the Weighted Average
REMIC I Net Mortgage Rate for such Distribution Date, (v) the Class A-MFL and
Class A-JFL Certificates shall equal the per annum rate equal to LIBOR plus
1.130% and 1.450%, respectively, provided, however, that under the circumstances
set forth in Section 6.12 regarding defaults or terminations under the related
Swap Transaction, the Pass-Through Rates of the Class A-MFL and Class A-JFL
Certificates shall equal the Pass-Through Rate of the related Class of Floating
Rate Regular Interests subject to reduction in accordance with the related Swap
Transaction; (vi) the Class A-M Certificates shall equal a per annum rate equal
to the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date
minus 0.042%; (vii) the Class A-MA Certificates shall equal a per annum rate
equal to the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date minus 0.046%; (viii) the Class A-J, Class A-JA, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates shall equal
a per annum rate equal to the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date; (ix) the Class L, Class M, Class N, Class O, Class P,
Class Q and Class S Certificates shall equal the fixed rate corresponding to
each such Class set forth in the Preliminary Statement hereto; (x) the Class X-1
Certificates shall equal the per annum rate equal to the weighted average of
Class X-1 Strip Rates for the Components for such Distribution Date (weighted on
the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date), (xi) the Class X-2
Certificates shall equal the per annum rate equal to the weighted average of the
Class X-2 Strip Rates for the respective Class X-2 Components for such
Distribution Date (weighted on the basis of the respective Component Notional
Amounts of such Components outstanding immediately prior to such Distribution
Date); (xii) the Class A-MFL Regular Interest shall equal a per annum rate equal
to the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date
minus 0.042%; and (xiii) the Class A-JFL Regular Interest shall equal a per
annum rate equal to the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date.
"Paying Agent" means Xxxxx Fargo Bank, National Association, and any
successor or assign, as provided herein.
"Paying Agent's Website" has the meaning set forth in Section 5.4(a)
hereof.
"PCAOB" means the Public Company Accounting Oversight Board.
"PCFII" has the meaning assigned in the Preliminary Statement
hereto.
"PCFII Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement III and shown on
Schedule III hereto.
"Penalty Charges" means the 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.
"Percentage Interest" means, with respect to each Class of
Certificates or Floating Rate Certificates other than the Residual Certificates,
the fraction of such Class evidenced by such Certificate, expressed as a
percentage (carried to four decimal places and rounded, if necessary), the
numerator of which is the Certificate Balance or Notional Amount, as applicable,
represented by such Certificate determined as of the Closing Date (as stated on
the face of such Certificate) and the denominator of which is the Aggregate
Certificate Balance or Notional Amount, as applicable, of all of the
Certificates of such Class determined as of the Closing Date. With respect to
each Residual Certificate, the percentage interest in distributions (if any) to
be made with respect to the relevant Class, as stated on the face of such
Certificate.
"Performing Party" has the meaning set forth in Section 13.12.
"Permitted Transferee" means any Transferee other than (i) a
Disqualified Organization, (ii) a United States Tax Person with respect to whom
income from a Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other United States Tax Person or (iii) a United
States Tax Person treated as a partnership for federal income tax purposes, any
partner of which, directly or indirectly (except through a U.S. corporation), is
not (and is not required to be under the related partnership agreement) a United
States Tax Person.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Report" means a report by an Independent
Person who regularly conducts environmental site assessments in accordance with
then current standards imposed by institutional commercial mortgage lenders and
who has a reasonable amount of experience conducting such assessments.
"Placement Agent" means Xxxxxx Xxxxxxx & Co. Incorporated or its
successor in interest.
"Plan" has the meaning set forth in Section 3.3(d).
"Preliminary Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Prepayment Interest Excess" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
of a Mortgage Loan (including any payment of an unscheduled Balloon Payment) is
made on or after the Due Date for such Mortgage Loan through and including the
last day of the Collection Period (or, with respect to those Mortgage Loans
listed on Schedule XIII, through and including the first Business Day prior to
the Master Servicer Remittance Date), the amount of interest that accrues on the
amount of such Principal Prepayment or Balloon Payment from such Due Date to the
date such payment was made, plus (if made) any payment by the related Mortgagor
of interest that would have accrued to the next succeeding Due Date (net of the
amount of any Master Servicing Fee, the Primary Servicing Fees, the Excess
Servicing Fees, any servicing fee payable in connection with a Non-Trust
Serviced Pari Passu Loan (if applicable), the Special Servicing Fee and the
Trustee Fee in each case, to the extent payable out of such collection of
interest), to the extent collected.
"Prepayment Interest Shortfall" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including any payment of an unscheduled Balloon Payment) made during any
Collection Period prior to the Due Date for such Mortgage Loan in such
Collection Period (including any shortfall resulting from a payment during the
grace period relating to such Due Date). The amount of any Prepayment Interest
Shortfall shall equal the excess of (A) the aggregate amount of interest which
would have accrued at the REMIC I Net Mortgage Rate on the Scheduled Principal
Balance of such Mortgage Loan for the 30 days ending on such Due Date if such
Principal Prepayment or Balloon Payment had not been made (net of the Master
Servicing Fee, the Primary Servicing Fees, the Excess Servicing Fees, any
servicing fee payable in connection with a Non-Trust Serviced Pari Passu Loan
(if applicable), the Special Servicing Fee and the Trustee Fee), over (B) the
aggregate interest that did so accrue at the REMIC I Net Mortgage Rate through
the date such payment was made (net of the Master Servicing Fee, the Primary
Servicing Fees, the Excess Servicing Fees, the Special Servicing Fee and the
Trustee Fee).
"Prepayment Premium" means, with respect to any Mortgage Loan (or
Serviced Loan Group, as applicable) for any Distribution Date, the prepayment
premiums or percentage premiums, if any, received during a related Collection
Period in connection with Principal Prepayments on such Mortgage Loan (or
Serviced Loan Group, as the case may be).
"Primary Collateral" means the portion of the Mortgaged Property
securing the Repurchased Loan or Cross-Collateralized Loan, as applicable, that
is encumbered by a first mortgage lien.
"Primary Servicer" means, (i) with respect to any PCFII Loan,
Principal Global Investors, LLC, and (ii) with respect to any Nationwide Loan,
Nationwide Life Insurance Company, and such party's permitted successors and
assigns.
"Primary Servicing Agreement" means, with respect to each Primary
Servicer, the agreement between such Primary Servicer and the applicable Master
Servicer, under which such Primary Servicer services the related Mortgage Loans
(or Serviced Loan Groups, as applicable).
"Primary Servicing Fee" means, for each calendar month, as to each
Mortgage Loan (or Serviced Companion Loan, as applicable) for which a Primary
Servicing Fee is payable pursuant to this Agreement, the Primary Servicing Fee
Rate multiplied by the Scheduled Principal Balance of such Mortgage Loan (or
Serviced Companion Loan, as applicable) immediately before the Due Date
occurring in such month, but prorated for the number of days during the calendar
month for such Mortgage Loan (or Serviced Companion Loan, as applicable) for
which interest actually accrues on such Mortgage Loan (or Serviced Companion
Loan, as applicable) and payable only from collections on such Mortgage Loan (or
Serviced Companion Loan, as applicable).
"Primary Servicing Fee Rate" means, the rate per annum at which the
monthly Primary Servicing Fee payable to the applicable Primary Servicer (or the
applicable Master Servicer, as applicable) accrues, which rate is the per annum
rate specified on the Mortgage Loan Schedule, as more specifically described, in
the case of the Primary Servicers, in the applicable Primary Servicing Agreement
(determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan (or Serviced
Companion Loan, as applicable) for such month).
"Principal Balance" means, with respect to any Mortgage Loan (or
Serviced Loan Group, as applicable) or any REO Mortgage Loan, for purposes of
performing calculations with respect to any Distribution Date, the principal
balance of such Mortgage Loan (or Serviced Loan Group, as the case may be) or
the related REO Mortgage Loan outstanding as of the Cut-Off Date after taking
into account all principal and interest payments made or due prior to the
Cut-Off Date (assuming, for any Mortgage Loan with a Cut-Off Date in November
2007 that is not November 1, 2007, that principal and interest payments for such
month were paid on November 1, 2007), reduced (to not less than zero) by (i) any
payments or other collections of amounts allocable to principal on such Mortgage
Loan (or Serviced Loan Group, as the case may be) or any related REO Mortgage
Loan that have been collected or received during any preceding Collection
Period, other than any Scheduled Payments due in any subsequent Collection
Period, and (ii) any Realized Principal Loss incurred in respect of such
Mortgage Loan (or Serviced Loan Group, as the case may be) or related REO
Mortgage Loan, in each case, during any related and preceding Collection Period.
"Principal Balance Certificates" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MFL, Class A-MA,
Class A-J, Class A-JFL, Class A-JA, 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 and Class S Certificates.
"Principal Distribution Amount" means, on any Distribution Date, the
amount equal to the excess, if any, of (I) the sum of:
(A) the aggregate (without duplication) of the following amounts
received with respect to the Mortgage Loans: (i) the principal portion of
all Scheduled Payments (other than the principal portion of Balloon
Payments) and any Assumed Scheduled Payments, in each case, to the extent
received or advanced, as the case may be, in respect of the Mortgage Loans
and any REO Mortgage Loans for their respective Due Dates occurring during
the related Collection Period; and (ii) all payments (including Principal
Prepayments and the principal portion of Balloon Payments) and any other
collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received
on or in respect of the Mortgage Loans during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal thereof;
(B) the aggregate amount of any collections received on or in
respect of the Mortgage Loans that represents a delinquent amount as to
which an Advance had been made, which Advance or interest thereon was
previously reimbursed during the Collection Period for a prior
Distribution Date as part of a Workout-Delayed Reimbursement Amount for
which a deduction was made under clause (II)(A) below with respect to such
Distribution Date (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount related to the Loan
Group that does not include such Mortgage Loan, and then to the Loan Group
Principal Distribution Amount related to the Loan Group that includes such
Mortgage Loan); and
(C) the aggregate amount of any collections identified and applied
by the applicable Master Servicer as recoveries of principal and received
on or in respect of the Mortgage Loans during the related Collection
Period that, in each case, represents a recovery of an amount previously
determined (in a Collection Period for a prior Distribution Date) to have
been a Nonrecoverable Advance and for which a deduction was made under
clause (II)(B) below with respect to a prior Distribution Date (with
respect to each such Mortgage Loan, allocated first to the Loan Group
Principal Distribution Amount related to the Loan Group that does not
include such Mortgage Loan, and then to the Loan Group Principal
Distribution Amount related to the Loan Group that includes such Mortgage
Loan), and which are applied pursuant to Section 6.6(c)(i); over
(II) the sum of (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount applicable to such
Mortgage Loan, and then to the other Loan Group Principal Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and Advance Interest thereon) that was reimbursed or paid during the
related Collection Period to one or more of the applicable Master
Servicer, the applicable Special Servicer and the Trustee from principal
collections on the Mortgage Loans pursuant to subsection (iii) of Section
5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances that was
reimbursed or paid during the related Collection Period to one or more of
the applicable Master Servicer, the applicable Special Servicer and the
Trustee during the related Collection Period from principal collections on
the Mortgage Loans pursuant to subsection (iv) of Section 5.2(a)(II).
For purposes of the definition of "Principal Distribution Amount,"
the Scheduled Payments and Principal Prepayments referred to in the proviso in
Section 5.2(b) shall be deemed to have been collected in the prior Collection
Period.
"Principal Prepayment" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan (or Serviced Loan Group, as
applicable) which is received or recovered in advance of its scheduled Due Date
and applied to reduce the Principal Balance of the Mortgage Loan (or Serviced
Loan Group, as the case may be) in advance of its scheduled Due Date, including,
without limitation, all proceeds, to the extent allocable to principal, received
from the payment of cash in connection with a substitution shortfall pursuant to
Section 2.3; provided that the pledge by a Mortgagor of Defeasance Collateral
with respect to a Defeasance Loan shall not be deemed to be a Principal
Prepayment.
"Private Placement Memorandum" means the Private Placement
Memorandum dated November 15, 2007, pursuant to which the Class X-1, Class X-2,
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 and Class S Certificates
will be offered for sale.
"Prohibited Party" means a party that is a proposed Servicing
Function Participant that a Master Servicer, a Special Servicer or the Trustee,
as applicable, seeks to retain as a Servicing Function Participant and as to
which the Master Servicers, the Special Servicers or the Trustee, as applicable,
has actual knowledge that such proposed party on any prior date failed to comply
with its Exchange Act or Regulation AB obligations with respect to the Subject
Securitization Transaction or any other commercial mortgage securitization. In
addition, a Prohibited Party shall be any Person identified in writing
(delivered prior to the date of retention) by the Depositor to the Master
Servicers, the Special Servicers or the Trustee, as applicable, that seeks to
retain such Person as a Person regarding which the Depositor has knowledge that
such party on any prior date failed to comply with its Exchange Act or
Regulation AB obligations with respect to the Subject Securitization Transaction
or any other commercial mortgage securitization.
"Projected Net Cash Flow" shall mean, with respect to any Mortgaged
Property that is a residential cooperative property, projected net operating
income at such Mortgaged Property, as set forth in the Appraisal obtained with
respect to such Mortgaged Property in connection with the origination of the
related Mortgage Loan (or an updated Appraisal, if required hereunder), assuming
such Mortgaged Property was operated as a rental property with rents set at
prevailing market rates taking into account the presence of existing rent
controlled or rent stabilized occupants, reduced by underwritten capital
expenditures, property operating expenses, a market rate vacancy assumption and
projected reserves.
"Prospectus" has the meaning set forth in the Preliminary Statement
hereto.
"PTCE" has the meaning set forth in Section 3.3(d).
"Purchase Price" means, with respect to (i) the repurchase, pursuant
to Article II of this Agreement, by the applicable Seller of a Mortgage Loan
sold by such Seller, (ii) the determination of fair value of an REO Mortgage
Loan with respect to a liquidation by a Special Servicer pursuant to Section
9.15 or (iii) the determination of fair value of a Mortgage Loan (or Serviced
Loan Group, as applicable) in connection with a purchase by the Option Holder
pursuant to Section 9.36 under the circumstances described therein, a price
equal to the sum of (A) 100% of the unpaid Principal Balance of such Mortgage
Loan (or Serviced Loan Group, as the case may be) (or, in each case, deemed
Principal Balance, in the case of an REO Mortgage Loan), plus (B) accrued but
unpaid interest thereon calculated at the Mortgage Rate to and including, the
Due Date in the Collection Period in which such purchase or liquidation occurs,
plus (C) the amount of any expenses related to such Mortgage Loan (or Serviced
Loan Group, as the case may be) or the related REO Property (including any
Servicing Advances and Advance Interest (which have not been paid by the
Mortgagor or out of Late Fees or default interest paid by the related Mortgagor
on the related Mortgage Loan (or Serviced Loan Group, as the case may be)) and
all unpaid Special Servicing Fees and Liquidation Fees paid or payable with
respect to the Mortgage Loan (or Serviced Loan Group, as the case may be) that
are reimbursable or payable to the applicable Master Servicer, the applicable
Special Servicer, the Paying Agent, the Trustee or the related Other Master
Servicer, the related Other Special Servicer, the related Other Trustee or the
related Other Paying Agent, plus (D) if such Mortgage Loan or REO Mortgage Loan
is being repurchased or substituted for by a Seller pursuant to the related
Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to be
incurred by the Primary Servicer, the applicable Master Servicer, the applicable
Special Servicer, the Depositor, the Paying Agent or the Trustee in respect of
the Material Breach or Material Document Defect giving rise to the repurchase or
substitution obligation (and that are not otherwise included in (C) above).
"Purchase Proceeds" means any cash amounts received by the
applicable Master Servicer in connection with: (i) the repurchase of a Mortgage
Loan or an REO Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the
purchase by the Option Holder of a Mortgage Loan pursuant to Section 9.36; (iii)
the purchase of the Mortgage Loans and REO Properties by the Depositor, the
applicable Master Servicer, the applicable Special Servicer or the holders of
the Class R-I Certificates pursuant to Section 10.1(b); (iv) if applicable, the
purchase of a Senior Mortgage Loan by the holder of a related Serviced Companion
Loan, or (v) if applicable, the purchase of a Mortgage Loan by a holder of a
mezzanine loan under the related mezzanine intercreditor agreement.
"Qualified Bidder" means as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person).
"Qualified Institutional Buyer" means a qualified institutional
buyer qualifying pursuant to Rule 144A.
"Qualified Insurer" means, (i) with respect to any Mortgage Loan (or
Serviced Loan Group, as applicable), an insurance company duly qualified as such
under the laws of the state in which the related Mortgaged Property is located,
duly authorized and licensed in such state to transact the applicable insurance
business and to write the insurance, but in no event rated lower than "A" by
Fitch, or if not so rated by Fitch, then Fitch has issued a Rating Agency
Confirmation, "A" by S&P, or if not so rated by S&P, then S&P has issued a
Rating Agency Confirmation, and "A" by DBRS or if not rated by DBRS, then (a) at
least A:IX by A.M. Best's Key Rating Guide, (b) an equivalent rating (such as
those listed above for Fitch and S&P) by at least two nationally recognized
statistical rating organizations (which may include S&P, Fitch and/or Xxxxx'x),
or (c) DBRS has issued a Rating Agency Confirmation, and (ii) with respect to
the Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond an
insurance company that has a claim paying ability no lower than "A" by S&P if
rated by S&P, or if not so rated by S&P, then S&P has issued a Rating Agency
Confirmation, "A" by Fitch (or if such company is not rated by Fitch, is rated
at least A:IX by A.M. Best's Key Rating Guide) and "A" by DBRS, or if not rated
by DBRS, then (a) at least A:IX by A.M. Best's Key Rating Guide, (b) an
equivalent rating (such as those listed above for Fitch and S&P) by at least two
nationally recognized statistical rating organizations (which may include S&P,
Fitch and/or Xxxxx'x) or (c) DBRS has issued a Rating Agency Confirmation, or
(iii) in either case, a company not satisfying clause (i) or (ii) but with
respect to which Rating Agency Confirmation is obtained from Fitch, S&P and
DBRS. "Qualified Insurer" shall also mean any entity that satisfies all of the
criteria, other than the ratings criteria, set forth in one of the foregoing
clauses and whose obligations under the related insurance policy are guaranteed
or backed by an entity that satisfies the ratings criteria set forth in such
clause (construed as if such entity were an insurance company referred to
therein).
"Qualifying Substitute Mortgage Loan" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has an outstanding principal balance, after
deduction of the principal portion of the Scheduled Payment due in the month of
substitution, not in excess of the Principal Balance of the Deleted Mortgage
Loan; provided, however, that, to the extent that the principal balance of such
Mortgage Loan is less than the Principal Balance of the Deleted Mortgage Loan,
then such differential in principal amount, together with interest on such
Mortgage Loan at the Mortgage Rate on the Deleted Mortgage Loan from the Due
Date as to which interest was last paid up to the Due Date in the Collection
Period in which such substitution occurs, shall be paid by the party effecting
such substitution to the applicable Master Servicer for deposit into the
applicable Certificate Account, and shall be treated as a Principal Prepayment
hereunder; (ii) is accruing interest at a rate of interest at least equal to
that of the Deleted Mortgage Loan; (iii) has a remaining term to stated maturity
not greater than, and not more than two years less than, that of the Deleted
Mortgage Loan; (iv) has (A) an original Loan-to-Value Ratio not higher than the
lesser of (x) the current Loan-to-Value Ratio of the Deleted Mortgage Loan and
(y) 75.0% and (B) has a current Debt Service Coverage Ratio equal to the greater
of (x) the current Debt Service Coverage Ratio of the Deleted Mortgage Loan and
(y) 1.25x; (v) will comply with all of the representations and warranties
relating to Mortgage Loans set forth herein, as of the date of substitution;
(vi) has a Phase I Environmental Report relating to the related Mortgaged
Property in the related Mortgage File and such Phase I Environmental Report does
not, in the good faith reasonable judgment of the applicable Special Servicer,
exercised in a manner consistent with the Servicing Standard, raise material
issues that have not been adequately addressed; (vii) has an engineering report
relating to the related Mortgaged Property in its Mortgage Files and such
engineering report does not, in the good faith reasonable judgment of the
applicable Special Servicer, exercised in a manner consistent with the Servicing
Standard, raise material issues that have not been adequately addressed; (viii)
is secured by a residential cooperative property if the Mortgage Loan
substituted for a Deleted Mortgage Loan is a Co-op Mortgage Loan; and (ix) as to
which the Trustee and the Paying Agent have received an Opinion of Counsel, at
the related Seller's expense, that such Mortgage Loan is a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided that no Mortgage Loan may have a Maturity Date after the date three
years prior to the Final Rated Distribution Date, and provided, further, that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless
Rating Agency Confirmation is obtained, and provided, further, that no such
Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the
Operating Adviser shall have approved of such substitution (provided, however,
that such approval of the Operating Adviser may not be unreasonably withheld).
In the event that either one mortgage loan is substituted for more than one
Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
more Deleted Mortgage Loans, then (A) the Principal Balance referred to in
clause (i) above shall be determined on the basis of aggregate Principal
Balances and (B) the rates referred to in clause (i) above and the remaining
term to stated maturity referred to in clause (ii) above shall be determined on
a weighted average basis; provided, however, that no individual interest rate,
minus the Administrative Cost Rate, shall be lower than the highest Pass-Through
Rate of any Class of Principal Balance Certificates then outstanding having a
fixed rate. Whenever a Qualifying Substitute Mortgage Loan is substituted for a
Deleted Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify that such Mortgage Loan meets all of the requirements
of this definition and shall send such certification to the Trustee, which shall
deliver a copy of such certification to the Master Servicers, the Special
Servicers, the Paying Agent and the Operating Adviser promptly, and in any event
within five Business Days following the Trustee's receipt of such certification.
"Rating Agencies" means Fitch, S&P and DBRS.
"Rating Agency Confirmation" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency;
provided that, with respect to any matter affecting a Serviced Companion Loan,
such confirmation shall also refer to the nationally recognized statistical
rating organizations then rating the securities representing an interest in such
loan and such rating organizations' respective ratings of such securities.
"Rating Agency Trigger Event" means if the Swap Counterparty
Guarantor's long-term rating is not at least "A" by Fitch or "A" by DBRS, or if
the Swap Counterparty's guarantor's short-term rating is not at least "A-1" by
S&P, or if it does not have a short-term rating by S&P, its long-term rating is
not at least "A" by S&P.
"RBC" has the meaning assigned in the Preliminary Statement hereto.
"RBC Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"RBC Trust Assets" means the RBC Loans, any REO Properties acquired
by the Trust with respect to the RBC Loans and any and all other related assets
of the Trust.
"Realized Interest Loss" means, with respect to each Mortgage Loan
(i) in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses set forth in the last sentence
of the definition of "Realized Principal Loss" or (iv) in the case of a
Modification Loss, a Modification Loss described in clause (iii) of the
definition thereof.
"Realized Loss" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.
Realized Losses on a Mortgage Loan are allocated first to the Principal Balance
of, and then to interest on such Mortgage Loan.
"Realized Principal Loss" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Realized
Loss, to the extent that it does not exceed the Principal Balance of the
Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii)
in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, (iv) in the case of an
Expense Loss, the portion thereof not treated as a Realized Interest Loss and
(v) the amounts in respect thereof that are withdrawn from the Certificate
Account pursuant to Section 6.6(b)(i). Notwithstanding clause (iv) of the
preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts with
respect to a Mortgage Loan that were identified as allocable to principal, such
excess shall be treated as a Realized Interest Loss.
"Record Date" means, for each Distribution Date, (i) with respect to
each Class of Certificates other than the Floating Rate Certificates, the close
of business on the last Business Day of the month immediately preceding the
month in which such Distribution Date occurs and (ii) with respect to the
Floating Rate Certificates, subject to Section 6.12, the Business Day
immediately preceding the related Distribution Date.
"Recoveries" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan (or Serviced Loan Group, as
applicable) or REO Property following the period in which a Final Recovery
Determination occurs plus other amounts defined as "Recoveries" herein.
"Regulation AB" means 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" means Regulation S under the 1933 Act.
"Regulation S Certificate" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"Regulation S Global Certificates" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"Regulation S Permanent Global Certificate" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"Regulation S Temporary Global Certificate" means, with respect to
any Class of 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 coupons.
"Rehabilitated Mortgage Loan" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan (or Serviced Loan Group, as
applicable) that was modified, based on the modified terms), or a complete
defeasance shall have occurred, (ii) no other Servicing Transfer Event has
occurred and is continuing (or with respect to determining whether a Required
Appraisal Loan is a Rehabilitated Mortgage Loan for applying Appraisal
Reductions, no other Appraisal Event has occurred and is continuing) and (iii)
one of the following statements is true with respect to any cost incurred as a
result of the occurrence of the Servicing Transfer Event: (a) the cost has been
reimbursed to the Trust, (b) the Mortgagor's obligation to pay the cost has been
forgiven, (c) the Mortgagor has agreed in writing to reimburse such costs or (d)
the cost represents an amount that has been the subject of an Advance made with
respect to the Mortgage Loan following default, the mortgage loan has been
worked out under terms that do not provide for the repayment of such Advance in
full upon the execution of the workout arrangement but the Mortgagor is
nonetheless obligated under the terms of the workout arrangement to reimburse
such Advance in the future. Neither the related Senior Mortgage Loan nor
Serviced Companion Loan will constitute a Rehabilitated Mortgage Loan unless the
entire related Serviced Loan Group constitutes a Rehabilitated Mortgage Loan.
"Release Date" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to each Reporting Servicer (as set forth, with respect to the Master
Servicers, the Special Servicers, any Primary Servicer, the Paying Agent and the
Trustee, on Schedule XVI 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 Paying Agent, the Master Servicers, the Special Servicers, any
Primary Servicer or any Reporting Sub-Servicer, the term "Relevant Servicing
Criteria" may refer to a portion of the Relevant Servicing Criteria applicable
to the Trustee, the Paying Agent, the Master Servicers, the Special Servicers,
any Primary Servicer or such Reporting Sub-Servicer.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans other than any Excess Interest payable thereon, such amounts
related thereto as shall from time to time be held in the Certificate Accounts,
the Interest Reserve Account, the Reserve Account and the Distribution Account
(other than the portion thereof constituting the Excess Interest Sub-account or
funds held with respect to REMIC II, REMIC III or the Floating Rate Accounts),
the related Insurance Policies (other than the interest of the holder of a
Serviced Companion Loan therein) and any related REO Properties (other than the
interest of the holder of a Serviced Companion Loan therein), for which a REMIC
election has been made pursuant to Section 12.1(a) hereof. None of the Serviced
Companion Loans or the Non-Trust Serviced Companion Loans or any amounts payable
thereon shall constitute an asset of the Trust or any REMIC Pool formed
hereunder.
"REMIC I Interests" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I Net Mortgage Rate" means, with respect to any Distribution
Date and any REMIC I Regular Interest, a rate per annum equal to the Adjusted
Mortgage Rate for the related Mortgage Loan for such Distribution Date (based on
the Mortgage Rate thereof (without taking into account any increase therein
after the Anticipated Repayment Date in respect of an ARD Loan or any default
interest rate), as of the Cut-Off Date and without regard to any modification,
waiver or amendment of the terms thereof following the Cut-Off Date).
"REMIC I Regular Interests" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to each Mortgage Loan, an interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of such Mortgage
Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate
of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests, and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC II Interests" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II Regular Interest A-1-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-6" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-7" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-8" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-9" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-2-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-2-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-6" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-JA" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-JFL" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-MA" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-MFL" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest E-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest E-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest G-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest G-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest K-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest K-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest Q" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest S" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interests" means, collectively, the REMIC II
Regular Interest A-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular
Interest A-1A-1, REMIC II Regular Interest A-1A-2, REMIC II Regular Interest
A-1A-3, REMIC II Regular Interest A-1A-4, REMIC II Regular Interest A-1A-5,
REMIC II Regular Interest A-1A-6, REMIC II Regular Interest A-1A-7, REMIC II
Regular Interest A-1A-8, REMIC II Regular Interest A-1A-9, REMIC II Regular
Interest A-2-1, REMIC II Regular Interest A-2-2, REMIC II Regular Interest
A-3-1, REMIC II Regular Interest A-3-2, REMIC II Regular Interest A-4-1, REMIC
II Regular Interest A-4-2, REMIC II Regular Interest A-4-3, REMIC II Regular
Interest A-4-4, REMIC II Regular Interest A-4-5, REMIC II Regular Interest
A-4-6, REMIC II Regular Interest A-M, REMIC II Regular Interest A-MFL, REMIC II
Regular Interest A-MA, REMIC II Regular Interest A-J, REMIC II Regular Interest
A-JFL, REMIC II Regular Interest A-JA, REMIC II Regular Interest B, REMIC II
Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest
D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest E-1, REMIC II
Regular Interest E-2, REMIC II Regular Interest F, REMIC II Regular Interest
G-1, REMIC II Regular Interest G-2, REMIC II Regular Interest H-1, REMIC II
Regular Interest H-2, REMIC II Regular Interest J, REMIC II Regular Interest
K-1, REMIC II Regular Interest K-2, REMIC II Regular Interest L, REMIC II
Regular Interest M, REMIC II Regular Interest N, REMIC II Regular Interest O,
REMIC II Regular Interest P, REMIC II Regular Interest Q and REMIC II Regular
Interest S.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC Pool" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(b) hereof.
"REMIC Provisions" means 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 the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC Regular Certificates" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MA, Class A-J,
Class A-JA, Class X-1, Class X-2, 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 and Class S Certificates.
"Rent Loss Policy" means a policy of insurance generally insuring
against loss of income or rent resulting from hazards or acts of God.
"Rents from Real Property" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO Account" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO Disposition" means the receipt by the applicable Master
Servicer or the applicable Special Servicer of Liquidation Proceeds and other
payments and recoveries (including proceeds of a final sale) from the sale or
other disposition of REO Property.
"REO Income" means, with respect to any REO Property (other than REO
Property that was security for a Serviced Loan Group), except as set forth
below, all income received in connection with such REO Property during such
period less any operating expenses, utilities, real estate taxes, management
fees, insurance premiums, expenses for maintenance and repairs and any other
capital expenses directly related to such REO Property paid during such period.
With respect to REO Property that was security for a Serviced Loan Group, only
the portion of such amounts payable to the holder of the related Senior Mortgage
Loan shall be included in REO Income. With respect to a Non-Trust Serviced Loan
Group (if the related Other Special Servicer has foreclosed upon the mortgaged
properties securing the related Non-Trust Serviced Pari Passu Loan), the REO
Income includes only the portion of such net income that is paid to the holder
of the related Non-Trust Serviced Pari Passu Loan pursuant to the related Other
Pooling and Servicing Agreement.
"REO Mortgage Loan" means a Mortgage Loan, as to which the related
Mortgaged Property is an REO Property.
"REO Property" means a Mortgaged Property (or the Trust's interest
therein, if the Mortgaged Property securing a Mortgage Loan (or Serviced Loan
Group, as applicable) has been acquired by the Trust) acquired by the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation
from bankruptcy in connection with a Defaulted Mortgage Loan or otherwise
treated as foreclosure property under the REMIC Provisions.
"Report Date" means the second Business Day before the related
Distribution Date.
"Reporting Servicer" means the Master Servicers, the Special
Servicers, any Primary Servicer, each Reporting Sub-Servicer, the Trustee, the
Paying Agent and any Additional Servicer, as the case may be.
"Reporting Sub-Servicer" means any Person that (i) is a Servicing
Function Participant, (ii) Services the assets of the Trust on behalf of (a) the
Trust, (b) the Trustee, (c) the Paying Agent, (d) the Master Servicers, (e) the
Special Servicers, (f) any Additional Servicer or (g) any other Person that
otherwise constitutes a "Sub-Servicer," and (iii) is responsible for the
performance (whether directly or through sub-servicers or Subcontractors) of
Servicing functions that are required to be performed by the Trustee, the Paying
Agent, the Master Servicers, the Special Servicers or any Additional Servicer
under this Agreement or any sub-servicing agreement and are identified in Item
1122(d) of Regulation AB. For clarification purposes, any Primary Servicer is a
Reporting Sub-Servicer.
"Repurchased Loan" has the meaning set forth in Section 2.3(a)
hereof.
"Request for Release" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan (other than a
Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as applicable) as
to which an Appraisal Event has occurred. A Mortgage Loan (other than a
Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as applicable) will
cease to be a Required Appraisal Loan at such time as it is a Rehabilitated
Mortgage Loan.
"Reserve Account" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account, which may be a sub-account of the Distribution Account.
"Residual Certificates" means, with respect to REMIC I, the Class
R-I Certificates; with respect to REMIC II, the Class R-II Certificates; and
with respect to REMIC III, the Class R-III Certificates.
"Responsible Officer" means, when used with respect to the initial
Trustee, Paying Agent or Custodian, any officer of Trustee, Paying Agent or
Custodian, as the case may be, with specific responsibilities for the matters
contemplated by this Agreement and when used with respect to any successor
Trustee, Paying Agent or Custodian, any Vice President, Assistant Vice
President, corporate trust officer or any assistant corporate trust officer or
Persons performing similar roles on behalf of the Trustee, the Paying Agent or
the Custodian, as the case may be.
"Restricted Servicer Reports" means, collectively, to the extent not
filed with the Commission, the CMSA Servicer Watch List, the CMSA Operating
Statement Analysis Report, the CMSA NOI Adjustment Worksheet, CMSA Financial
File and the CMSA Comparative Financial Status Report.
"Reverse Sequential Order" means sequentially to the Class S, Class
Q, Class P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class
G, Class F, Class E, Class D, Class C and Class B Certificates, then to the
Class A-J Certificates, the Class A-JA Certificates and the Class A-JFL Regular
Interest, pro rata, and then to the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, and finally to the
Class X-1, Class X-2, Class A-1, Class A-1A, Class A-2, Class A-3 and Class A-4
Certificates, on a pro rata basis, as described herein.
"Rule 144A" means Rule 144A under the 1933 Act.
"Rule 144A IAI Global Certificate" means, with respect to any Class
of Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"Xxxxxxxx-Xxxxx Act" means 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" has the meaning set forth in Section
13.6.
"Scheduled Payment" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan (or Serviced Loan Group, as applicable)
required to be paid on its Due Date by the Mortgagor in accordance with the
terms of the related Mortgage Note (excluding all amounts of principal and
interest which were due on or before the Cut-Off Date, whenever received, and
taking account of any modifications thereof and the effects of any Debt Service
Reduction Amounts and Deficient Valuation Amounts).
"Scheduled Principal Balance" means, with respect to any Mortgage
Loan (or Serviced Loan Group, as applicable) or any REO Mortgage Loan, for
purposes of performing calculations with respect to any Distribution Date, the
Principal Balance thereof minus the aggregate amount of any P&I Advances of
principal previously made with respect to such Mortgage Loan (or Serviced Loan
Group, as the case may be) or such REO Mortgage Loan.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"Seller" means MSMCH, GECC, PCFII, RBC, NCB, FSB, Nationwide and
NatCity, as the case may be.
"Seller Sub-Servicer": A Sub-Servicer or Additional Servicer
required to be retained by a Master Servicer or a Special Servicer, as
applicable, by a Seller, as listed on Schedule XX hereto.
"Senior Mortgage Loan" means a Mortgage Loan in a Serviced Loan
Group.
"Service(s)(ing)" means, 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
Item 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 securities market.
"Serviced Companion Loan" means any pari passu note or subordinate
note other than the Mortgage Loan that evidences the related Serviced Loan
Group.
"Serviced Companion Loan Custodial Account" means the custodial
sub-account of the Certificate Account (but which is not included in the Trust)
created and maintained by the applicable Master Servicer pursuant to Section
5.1(c) on behalf of the holder(s) of each Serviced Companion Loan. The Serviced
Companion Loan Custodial Account shall be maintained as a sub-account of an
Eligible Account.
"Serviced Loan Group" means, with respect to a mortgage loan that is
evidenced by more than one note, the entire mortgage loan, including the related
Mortgage Loan and the other pari passu notes or subordinate notes, other than a
Non-Trust Serviced Loan Group. A Serviced Loan Group consists of the related
Senior Mortgage Loan and the Serviced Companion Loan(s).
"Servicer Errors and Omissions Insurance Policy" or "Errors and
Omissions Insurance Policy" means an errors and omissions insurance policy
maintained by each Master Servicer, each Special Servicer, the Trustee or the
Paying Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"Servicer Fidelity Bond" or "Fidelity Bond" means a bond or
insurance policy under which the insurer agrees to indemnify each Master
Servicer, each Special Servicer, the Trustee or the Paying Agent, as the case
may be, (subject to standard exclusions) for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of a Master Servicer's, a Special Servicer's, the Trustee's or the
Paying Agent's, as the case may be, officers or employees and is maintained in
accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
"Servicer Mortgage File" means (i) with respect to all Mortgage
Loans other than the MSMCH Loans, copies of the mortgage documents listed in the
definition of Mortgage File relating to a Mortgage Loan, and (ii) with respect
to the MSMCH Loans, copies of the mortgage documents listed in the definition of
Mortgage File relating to a Mortgage Loan and, to the extent required to be (and
actually) delivered to the applicable Master Servicer by the applicable Seller
pursuant to the applicable Mortgage Loan Purchase Agreement, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"Servicing Advance" means any cost or expense of the Master
Servicers, the Special Servicers or the Trustee, as the case may be, designated
as a Servicing Advance pursuant to this Agreement and any other costs and
expenses incurred by or for such Master Servicer, such Special Servicer or the
Trustee, as the case may be, to protect and preserve the security for a Mortgage
Loan (other than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group,
as applicable).
"Servicing Criteria" means the criteria set forth in paragraph (d)
of Item 1122 of Regulation AB, as such may be amended from time to time.
"Servicing Function Participant" means any Person, other than the
Master Servicers, the Special Servicers, the Trustee and the Paying Agent that,
within the meaning of Item 1122 of Regulation AB, is performing activities
addressed by the Servicing Criteria, unless such Person's activities relate only
to 5% or less of the Mortgage Loans (based on their Principal Balance) or the
applicable Master Servicer, the applicable Special Servicer, the Trustee or the
Paying Agent has assumed responsibility for such activities, as provided for
under Regulation AB. For clarification purposes, each Primary Servicer is a
Servicing Function Participant.
"Servicing Officer" means, any officer or employee of the Master
Servicers or Special Servicers involved in, or responsible for, the
administration and servicing of the Mortgage Loans (or Serviced Loan Group, as
applicable) or this Agreement and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's or
employee's knowledge of and familiarity with the particular subject, and, in the
case of any certification required to be signed by a Servicing Officer, such an
officer or employee whose name and specimen signature appears on a list of
servicing officers furnished to the Trustee by the Master Servicers or the
Special Servicers, as applicable, as such list may from time to time be amended.
"Servicing Standard" means the standard by which the Master
Servicers and Special Servicers will service and administer the Mortgage Loans
(or Serviced Loan Groups, as applicable) and/or REO Properties that it is
obligated to service and administer on behalf of the Trustee in the best
interests and for the benefit of the Certificateholders (or, with respect to a
Serviced Loan Group, for the Certificateholders and the holder of the related
Serviced Companion Loan, as a collective whole, but with respect to the Serviced
Loan Groups, taking into account the subordinate nature of the Serviced
Companion Loans that are subordinate notes, if any) (as determined by the
applicable Master Servicer or the applicable Special Servicer, as applicable, in
its good faith and reasonable judgment), in accordance with applicable law, the
terms of this Agreement, and the terms of the respective subject Mortgage Loans
(or Serviced Loan Group, as applicable) and the Co-Lender Agreement (if
applicable) and, to the extent consistent with the foregoing, further as
follows:
(i) with the same skill, care and diligence as is normal and usual
in its general mortgage servicing activities on behalf of third parties or
on behalf of itself, whichever is higher, and in the case of a Special
Servicer, its REO Property management 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; and
(ii) with a view to the timely collection of all scheduled payments
of principal and interest under the Mortgage Loans (or Serviced Loan
Groups, as applicable) and, in the case of a Special Servicer, if a
serviced Mortgage Loan (or Serviced Loan Group, as applicable) comes into
and continues in default, and if, in the judgment of such Special
Servicer, no satisfactory arrangements can be made for the collection of
the delinquent payments, the maximization of the recovery of principal and
interest on that Mortgage Loan (or Serviced Loan Group, as the case may
be) to the Certificateholders, as a collective whole (or, in the case of a
Serviced Loan Group, the maximization of recovery of principal and
interest thereon to the Certificateholders and the holder of the related
Serviced Companion Loan, as a collective whole), on a net present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders will be performed at the rate
determined by such Special Servicer but in any event not less than (i) the
related REMIC I Net Mortgage Rate, in the case of the Mortgage Loans
(other than any Senior Mortgage Loan or Serviced Companion Loan) or (ii)
the weighted average of the mortgage rates on the related Senior Mortgage
Loan and Serviced Companion Loan, in the case of any Serviced Loan Group);
but without regard to: (I) any relationship that a Master Servicer or a Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor; (II) the ownership of any Certificate (or any interest in a Serviced
Companion Loan or mezzanine loan, as applicable) by a Master Servicer or a
Special Servicer, as the case may be, or any Affiliate thereof; (III) a Master
Servicer's obligation to make P&I Advances or Servicing Advances; (IV) a Special
Servicer's obligation to request that a Master Servicer make Servicing Advances;
(V) the right of a Master Servicer (or any Affiliate thereof) or a 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
under this Agreement or with respect to any particular transaction, and (VI)
other than with respect to the Capmark Master Servicer, any obligation of a
Master Servicer or any of its Affiliates (in their capacity as a Seller, if
applicable) to cure a breach of representation or warranty or repurchase a
Mortgage Loan.
"Servicing Transfer Event" means the occurrence of any of the
following events: (i) a payment default shall have occurred on a Mortgage Loan
(other than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as
applicable) (x) at its Maturity Date (except if (a) the Mortgagor is making its
Assumed Scheduled Payments, (b) the Mortgagor notifies the applicable Master
Servicer (who shall forward such notice to the other Master Servicer, the
applicable Special Servicer and the Operating Adviser) of its intent to
refinance such Mortgage Loan (or Serviced Loan Group, as the case may be) and is
diligently pursuing such refinancing, (c) the Mortgagor delivers a firm
commitment to refinance acceptable to the Operating Adviser on or prior to the
Maturity Date, and (d) such refinancing occurs within 60 days of such default,
which 60-day period may be extended to 120 days by the Master Servicer with the
consent of the Operating Adviser) or (y) if any other payment is more than 60
days past due or has not been made on or before the second Due Date following
the date such payment was due; (ii) any Mortgage Loan (other than a Non-Trust
Serviced Pari Passu Loan) (or Serviced Loan Group, as applicable) as to which,
to the applicable Master Servicer's or the applicable Special Servicer's
knowledge, the Mortgagor has consented to the appointment of a receiver or
conservator in any insolvency or similar proceeding of, or relating to, such
Mortgagor or to all or substantially all of its property, or the Mortgagor has
become the subject of a decree or order issued under a bankruptcy, insolvency or
similar law and such decree or order shall have remained undischarged,
undismissed or unstayed for a period of 30 days; (iii) any Mortgage Loan (other
than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as the case
may be) as to which the applicable Master Servicer or the applicable Special
Servicer shall have received notice of the foreclosure or proposed foreclosure
of any other lien on the Mortgaged Property; (iv) any Mortgage Loan (other than
a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as the case may
be) as to which the applicable Master Servicer or the applicable Special
Servicer has knowledge of a default (other than a failure by the related
Mortgagor to pay principal or interest) which in the good faith reasonable
judgment of such Master Servicer or such Special Servicer materially and
adversely affects the interests of the Certificateholders (or the holder of a
Serviced Companion Loan) and which has occurred and remains unremedied for the
applicable grace period specified in such Mortgage Loan (or, if no grace period
is specified, 60 days); (v) any Mortgage Loan (or Serviced Loan Group, as the
case may be) as to which the Mortgagor admits in writing its inability to pay
its debts generally as they become due, files a petition to take advantage of
any applicable insolvency or reorganization statute, makes an assignment for the
benefit of its creditors or voluntarily suspends payment of its obligations; and
(vi) (A) any Mortgage Loan (other than a NCB, FSB Loan or Non-Trust Serviced
Pari Passu Loan) (or Serviced Loan Group, as the case may be) as to which, in
the good faith reasonable judgment (in accordance with the Servicing Standard)
of the applicable Master Servicer or the applicable Special Servicer, (a) a
payment default is imminent or is likely to occur within 60 days or (b) any
other default is imminent or is likely to occur within 60 days and such default,
in the judgment of such Master Servicer or Special Servicer, is reasonably
likely to materially and adversely affect the interests of the
Certificateholders or the holders of any related Serviced Companion Loan or (B)
with respect to a NCB, FSB Loan (or Serviced Loan Group, if applicable) as to
which, in the good faith reasonable judgment (in accordance with the Servicing
Standard) of the applicable Master Servicer or Special Servicer, (a) a payment
default is imminent or is reasonably foreseeable (except to the extent that, in
the good faith reasonable judgment (in accordance with the Servicing Standard)
of such Master Servicer or Special Servicer, such imminent or reasonably
foreseeable default is likely to be cured within the periods described in clause
(i) above) or (b) any other default is imminent or is reasonably foreseeable and
such default, in the judgment of such Master Servicer or Special Servicer, is
reasonably likely to materially and adversely affect the interests of the
Certificateholders. If a Servicing Transfer Event occurs with respect to a
Senior Mortgage Loan, it shall be deemed to have occurred also with respect to
the related Serviced Companion Loan. If a Servicing Transfer Event occurs with
respect to a Serviced Companion Loan, it shall be deemed to have occurred also
with respect to the related Senior Mortgage Loan.
"Significant Mortgage Loan" means a Mortgage Loan which has a
Principal Balance (together with any other Mortgage Loan with which it is
cross-collateralized) equaling or exceeding 5% of the Aggregate Certificate
Balance or exceeds $35,000,000 or is one of the then current top 10 loans (by
Principal Balance) in the Mortgage Pool.
"Significant Obligor" means a "significant obligor" as defined in
Regulation AB. As of the date hereof, there is no Significant Obligor.
"Similar Laws" has the meaning set forth in Section 3.3(d).
"Single-Purpose Entity" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with Affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
"Sole Certificateholder" means any Certificateholder (or
Certificateholders provided they act in unanimity) holding 100% of the then
outstanding Class X-1, Class X-2, Class L, Class M, Class N, Class O, Class P,
Class Q, Class S and Class EI Certificates or an assignment of the voting rights
thereof; provided, however, that the Certificate Balances of the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MFL, Class A-MA,
Class A-J, Class A-JFL, Class A-JA, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J and Class K Certificates have been reduced to zero.
"Special Servicer" means (a) with respect to any Mortgage Loan other
than the Co-op Mortgage Loans and the Non-Trust Serviced Pari Passu Loans, any
REO Property acquired by the Trust with respect to such Mortgage Loan and any
matters relating to the foregoing, the General Special Servicer; and (b) with
respect to any Co-op Mortgage Loan, any REO Property acquired by the Trust with
respect to such Co-op Mortgage Loan and any matters relating to the foregoing,
the Co-op Special Servicer.
"Special Servicer Compensation" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees and any other amounts to be paid to a Special Servicer
pursuant to the terms of this Agreement.
"Special Servicer Remittance Date" means the Business Day preceding
each Determination Date.
"Special Servicing Fee" means, for each calendar month, as to each
Mortgage Loan (other than a Non-Trust Serviced Pari Passu Loan) (or Serviced
Companion Loan, if applicable) that is a Specially Serviced Mortgage Loan
(including REO Mortgage Loans), the fraction or portion of the Special Servicing
Fee Rate applicable to such month (determined using the same interest accrual
methodology that is applied with respect to the Mortgage Rate for such Mortgage
Loan (or Serviced Companion Loan, if applicable) for such month) multiplied by
the Scheduled Principal Balance of such Specially Serviced Mortgage Loan
immediately before the Due Date occurring in such month.
"Special Servicing Fee Rate" means 0.25% per annum.
"Special Servicing Officer" means any officer or employee of a
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the applicable Master Servicer by such Special
Servicer signed by an officer of such Special Servicer, as such list may from
time to time be amended.
"Specially Serviced Mortgage Loan" means, as of any date of
determination, any Mortgage Loan (or Serviced Loan Group, as applicable) with
respect to which a Servicing Transfer Event has occurred and is continuing.
Promptly upon a Mortgage Loan (or Serviced Loan Group, as applicable) becoming a
Specially Serviced Mortgage Loan, the applicable Master Servicer shall be
responsible to deliver to the applicable Special Servicer all information,
documents and records relating to such Mortgage Loan (or Serviced Loan Group, as
the case may be), as reasonably requested by such Special Servicer to enable it
to assume its duties with respect to such Mortgage Loan (or Serviced Loan Group,
as the case may be). A Specially Serviced Mortgage Loan shall cease to be a
Specially Serviced Mortgage Loan from and after the date on which the applicable
Special Servicer notifies the applicable Master Servicer, the Operating Adviser,
the Paying Agent and the Trustee, in accordance with Section 8.1(b), that such
Mortgage Loan (or Serviced Loan Group, as the case may be), with respect to such
Servicing Transfer Event, has become a Rehabilitated Mortgage Loan, unless and
until such Master Servicer notifies such Special Servicer, the Paying Agent and
the Trustee, in accordance with Section 8.1(b) that another Servicing Transfer
Event with respect to such Mortgage Loan (or Serviced Loan Group, as the case
may be) exists or occurs.
"Standard Hazard Insurance Policy" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"Sub-Servicer" has the meaning set forth in Section 8.4(b).
"Sub-Servicing Agreement" means a Sub-Servicing Agreement, or any
other agreement between a Master Servicer or Primary Servicer and a
Sub-Servicer, with respect to the servicing, primary servicing or sub-servicing
of one or more Mortgage Loans.
"Subcontractor" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing of Mortgage Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Mortgage Loans under the direction or authority of the Master
Servicers, the Special Servicers, an Additional Servicer, a Reporting
Sub-Servicer, the Paying Agent or the Trustee.
"Subject Securitization Transaction" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"Subordinate Certificates" means, collectively, the Class A-M, Class
A-MFL, Class A-MA, Class A-J, Class A-JFL, Class A-JA, 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 and Class S Certificates.
"Subordinate Loan" means, with respect to a Serviced Loan Group, a
related Serviced Companion Loan that is subordinate in priority to the related
Senior Mortgage Loan.
"Successful Bidder" has the meaning set forth in Section 8.29(d).
"Swap Agreement" means the ISDA Master Agreement, dated as of
November 29, 2007, between the Swap Counterparty and the Trust, and the Credit
Support Annex and the Schedule (each as defined in the Swap Agreement),
regarding a separate interest rate swap transaction for each of the Class A-MFL
and Class A-JFL Certificates.
"Swap Counterparty" means Xxxxxx Xxxxxxx Capital Services Inc.,
acting in such capacity or its successor in interest.
"Swap Counterparty Guarantor" means Xxxxxx Xxxxxxx, a Delaware
corporation.
"Swap Counterparty Collateral Account" has the meaning set forth in
Section 8.31(f).
"Swap Default" means any failure on the part of the Swap
Counterparty to (i) make a required payment under a Swap Transaction, (ii) post
acceptable collateral, cause an acceptable entity to guarantee or provide an
indemnity in respect of the Swap Counterparty's obligations, find an acceptable
replacement Swap Counterparty after a Rating Agency Trigger Event or enter into
any other arrangement acceptable to the Rating Agencies, or (iii) find an
acceptable replacement Swap Counterparty after the Swap Counterparty guarantor's
long-term rating is reduced below "BBB-" by S&P, or if it does not have a
long-term rating by S&P, its short-term rating is not at least "A-3" by S&P, in
each case of clauses (i), (ii) and (iii), as required by the Schedule to the
ISDA Master Agreement.
"Swap Transaction" means, with respect to the Class A-MFL or Class
A-JFL Certificates, an interest rate swap transaction for such Class of Floating
Rate Certificates under the Swap Agreement.
"Tax Matters Person" means the Person designated as the "tax matters
person" of the related REMIC Pool pursuant to Treasury Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
"Termination Price" has the meaning set forth in Section 10.1(b)
herein.
"30/360 basis" means any Mortgage Loan that accrues interest on the
basis of a 360-day year consisting of twelve 30-day months.
"Title Insurance Policy" means a title insurance policy maintained
with respect to a Mortgage Loan.
"Transfer" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust" or "Trust Fund" means the trust created pursuant to this
Agreement and designated "Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16," the assets
of which consist of all the assets of REMIC I (including the related Mortgage
Loans (other than Excess Interest thereon), such related amounts as shall from
time to time be held in the Certificate Accounts, the Distribution Account
(other than the Excess Interest Sub-Account), the Interest Reserve Account, the
Reserve Account, the REO Accounts, the Trustee's rights under the Insurance
Policies, any REO Properties (or the Trust's beneficial interest in a Mortgaged
Property acquired under any Other Pooling and Servicing Agreement) and other
items referred to in Section 2.1(a) hereof, in each case to the extent allocable
to the related Mortgage Loan), the REMIC I Regular Interests, the REMIC II
Regular Interests, the Floating Rate Regular Interests, the Swap Transactions,
the Floating Rate Accounts, Excess Interest and the Excess Interest Sub-Account.
The Trust shall not include any Serviced Companion Loan, any interest of the
holder of a Serviced Companion Loan or the Serviced Companion Loan Custodial
Account. The Trust shall not include the Non-Trust Serviced Companion Loans.
"Trustee" means LaSalle Bank National Association, as trustee, or
its successor-in-interest, or if any successor trustee, or any co-trustee shall
be appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co trustee (subject to Section
7.9 hereof), as the case may be.
"Trustee Fee" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the
Trustee Fee Rate applicable to such month (determined using the same interest
accrual methodology (other than the rate of accrual) that is applied with
respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied
by the Scheduled Principal Balance of each such Mortgage Loan immediately before
the Due Date occurring in such month. A portion of the Trustee Fee shall be
payable to the Paying Agent as agreed between the Trustee and the Paying Agent.
"Trustee Fee Rate" means 0.00082% per annum.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
"Underwriter" means each of Xxxxxx Xxxxxxx & Co. Incorporated,
Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (except with respect to the Class A-4 Certificates) and RBC Capital
Markets Corporation, or their respective successors-in-interest.
"United States Person" means (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a United
States Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-United States Person who has sole
or shared investment discretion with respect to its assets), (iv) any trust of
which any trustee is a United States Person (other than a trust of which at
least one trustee is a non-United States Person and has sole or shared
investment discretion with respect to its assets), (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a United States Person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-United States Person), (viii) any partnership or corporation organized
or incorporated under the laws of a foreign jurisdiction and formed by a United
States Person principally for the purpose of investing in securities not
registered under the 1933 Act (unless it is organized or incorporated, and
owned, by accredited investors within the meaning of Rule 501(A) under the 1933
Act who are not natural persons, estates or trusts); provided, however, that the
term "United States Person" shall not include (A) a branch or agency of a United
States Person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the banking
or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of Regulation S under the 1933 Act and any other similar
international organizations, and their agencies, Affiliates and pension plans.
"United States Tax Person" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership (except to the extent
provided in applicable Treasury Regulations) created or organized in or under
the laws of the United States or any State thereof or the District of Columbia,
including any entity treated as such a corporation or partnership for federal
income tax purposes, (iii) an estate the income of which is includible in gross
income for United States tax purposes, regardless of its source or (iv) a trust
if a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States Tax Persons has
the authority to control all substantial decisions of such trust (or to the
extent provided in applicable Treasury Regulations, a trust in existence on
August 20, 1996, which is eligible to elect to be treated as a United States Tax
Person).
"Unliquidated Advance" means any Advance previously made by a party
hereto that has been previously reimbursed to the Person that made the Advance
by the Trust as part of a Workout-Delayed Reimbursement Amount pursuant to
subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the
Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan
or REO Property in respect of which the Advance was made.
"Unpaid Interest" means, on any Distribution Date with respect to
any Class of Interests (including the Floating Rate Regular Interests) or
Certificates (excluding the Residual Certificates, the Floating Rate
Certificates and the Class EI Certificates), the portion of Distributable
Certificate Interest for such Class remaining unpaid as of the close of business
on the preceding Distribution Date, plus one month's interest thereon at the
applicable Pass-Through Rate.
"Unrestricted Servicer Reports" means, collectively, the CMSA
Delinquent Loan Status Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Loss Report, CMSA Loan
Periodic Update File, CMSA Loan Setup File, CMSA Bond Level File, CMSA
Collateral Summary File, CMSA Reconciliation of Funds Report, CMSA REO Status
Report, CMSA Loan Level Reserve/LOC Report, CMSA Advance Recovery Report, CMSA
Total Loan Report and, if and to the extent filed with the Commission, such
reports and files as would, but for such filing, constitute Restricted Master
Servicer Reports.
"USAP" has the meaning set forth in Section 13.10 herein.
"Weighted Average REMIC I Net Mortgage Rate" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balances as of the close of business on the preceding Distribution
Date.
"Xxxxx Fargo Master Servicer" means Xxxxx Fargo Bank, National
Association, and its permitted successors or assigns.
"WHFIT" has the meaning set forth in Section 12.5.
"WHFIT Regulations" has the meaning set forth in Section 12.5.
"Whole Loan" means a Serviced Loan Group or Non-Trust Serviced Loan
Group, as applicable.
"Work-Out Fee" means a fee payable with respect to any Rehabilitated
Mortgage Loan (other than a Non-Trust Serviced Pari Passu Loan), equal to the
product of (x) 1.00% and (y) the amount of each collection of interest (other
than default interest and Excess Interest) and principal received (including any
Condemnation Proceeds received and applied as a collection of such interest and
principal) on such Mortgage Loan (or Serviced Loan Group, as applicable) so long
as it remains a Rehabilitated Mortgage Loan or otherwise payable as set forth in
Section 9.21(d).
"Workout-Delayed Reimbursement Amount" has the meaning set forth in
subsection (II)(A) of Section 5.2(a).
"Yield Maintenance Charges" means, with respect to any Distribution
Date, the aggregate of all yield maintenance charges, if any, received during
the related Collection Period in connection with Principal Prepayments.
"Yield Maintenance Minimum Amount" means, 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.
Section 1.2 Calculations Respecting Mortgage Loans
(a) Calculations required to be made by the Paying Agent pursuant to
this Agreement with respect to any Mortgage Loan (or Serviced Loan Group, as
applicable) shall be made based upon current information as to the terms of such
Mortgage Loan (or Serviced Loan Group, as the case may be) and reports of
payments received from the applicable Master Servicer on such Mortgage Loan (or
Serviced Loan Group, as the case may be) and payments to be made to the Paying
Agent as supplied to the Paying Agent by such Master Servicer. The Paying Agent
shall not be required to recompute, verify or recalculate the information
supplied to it by the applicable Master Servicer and may conclusively rely upon
such information in making such calculations. If, however, a Responsible Officer
of the Paying Agent has actual knowledge of an error in the calculations, the
Paying Agent shall inform the applicable Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan
documents (or with respect to a Serviced Loan Group, the related Co-Lender
Agreement), any amounts (other than escrow and reserve deposits and
reimbursements of Servicing Advances and expenses) received in respect of a
Mortgage Loan (or Serviced Companion Loan, as applicable) as to which a default
has occurred and is continuing (other than Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds, Purchase Proceeds and REO Income) shall be
applied as follows: first, to overdue interest due with respect to such Mortgage
Loan (or Serviced Companion Loan, as the case may be) at the Mortgage Rate
thereof, second, to current interest due with respect to such Mortgage Loan (or
Serviced Companion Loan, as the case may be) at the Mortgage Rate thereof,
third, to the reduction of the Principal Balance of such Mortgage Loan (or
Serviced Companion Loan, as the case may be) to zero if such Mortgage Loan (or
Serviced Companion Loan, as the case may be) has been accelerated, and in
respect of any scheduled payments of principal then due to the extent that such
Mortgage Loan (or Serviced Companion Loan, as the case may be) has not yet been
accelerated, fourth, to any default interest and other amounts due on such
Mortgage Loan (or Serviced Companion Loan, as the case may be) and fifth, to
Late Fees due with respect to such Mortgage Loan (or Serviced Companion Loan, as
the case may be). The foregoing allocations are intended to govern loan level
allocations but shall not govern allocations of such amounts at the trust level
for the purpose of determining Principal Distribution Amounts or Distributable
Certificate Interest.
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds,
Purchase Proceeds and REO Income shall be applied as follows: first, as a
recovery of any related and unreimbursed Advances (together with interest
thereon) and Unliquidated Advances (to the Trust), and if applicable, unpaid
Liquidation Expenses; second, as a recovery of unpaid servicing compensation;
third, as a recovery of any Additional Trust Expenses, fourth, as a recovery of
any Nonrecoverable Advances thereon, except with respect to any Unliquidated
Advance previously reimbursed from principal pursuant to Section 5.2(a)(II)(iv);
fifth, as a recovery of any remaining accrued and unpaid interest on such
Mortgage Loan (or Serviced Companion Loan) at the related Mortgage Rate to, but
not including, the date of receipt (or, in the case of a full monthly payment
from any Mortgagor, through the related Due Date); sixth, as a recovery of any
remaining principal of such Mortgage Loan (or Serviced Companion Loan) then due
and owing, including by reason of acceleration of the Mortgage Loan (or Serviced
Companion Loan) following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan (or Serviced Companion Loan), as a
recovery of principal to the extent of its entire remaining unpaid Principal
Balance); seventh, unless a Liquidation Event has occurred with respect to such
Mortgage Loan (or Serviced Companion Loan), as a recovery of amounts to be
currently applied to the payment of real estate taxes, assessments, insurance
premiums (including premiums on any Environmental Insurance Policy), ground
rents (if applicable) and similar items; eighth, as a recovery of any Late Fees
and default interest then due and owing under such Mortgage Loan (or Serviced
Companion Loan); ninth, as a recovery of any Prepayment Premium or Yield
Maintenance Charge then due and owing under such Mortgage Loan (or Serviced
Companion Loan); tenth, as a recovery of any assumption fees, Modification Fees
and extension fees then due and owing under such Mortgage Loan (or Serviced
Companion Loan); and eleventh, as a recovery of any other amounts then due and
owing under such Mortgage Loan (or Serviced Companion Loan).
(c) Notwithstanding the foregoing applications of amounts received
by or on behalf of the Trust in respect of any Mortgage Loan (or Serviced
Companion Loan), any amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) (or, with
respect to a Serviced Companion Loan, any amounts due and owing under the
related mortgage note and mortgage, excluding amounts for principal and accrued
and unpaid interest) shall be applied in accordance with the express provisions
of the related Mortgage Loan documents.
Section 1.3 Calculations Respecting Accrued Interest
Accrued interest on any Certificate (other than the Floating Rate
Certificates) and on the Floating Rate Regular Interests shall be calculated
based upon a 360-day year consisting of twelve 30-day months and, subject to
Section 6.12, accrued interest on the Floating Rate Certificates shall be
calculated on the basis of the actual number of days elapsed in the related
Interest Accrual Period and a 360-day year. Pass-Through Rates shall be carried
out to eight decimal places, rounded if necessary. All dollar amounts calculated
hereunder shall be rounded to the nearest xxxxx.
Section 1.4 Interpretation
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement, shall refer to this agreement as a
whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such term shall be equally applicable to both the singular and plural forms of
such term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
Section 1.5 ARD Loans
Notwithstanding any provision of this Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a result of
the step-up in the Mortgage Rate upon failure of the related Mortgagor to pay
the principal on the Anticipated Repayment Date as specifically provided for in
the related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not
an asset of any REMIC Pool.
(c) Neither a Master Servicer nor a Special Servicer shall take any
enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of such Master Servicer and such Special Servicer, as the
case may be, the Liquidation Proceeds expected to be recovered in connection
with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to each ARD Loan after its Anticipated Repayment
Date, the respective Master Servicer or respective Special Servicer, as the case
may be, shall be permitted, in its discretion, to waive in accordance with
Section 8.18 and Section 9.5 hereof, all or any accrued Excess Interest if,
prior to the related Maturity Date, the related Mortgagor has requested the
right to prepay the Mortgage Loan in full together with all payments required by
the Mortgage Loan in connection with such prepayment except for all or a portion
of accrued Excess Interest, provided that the respective Master Servicer's or
the respective Special Servicer's determination to waive the right to such
accrued Excess Interest is in accordance with the Servicing Standard and with
Section 8.18 and Section 9.5 hereof. The respective Master Servicer or the
respective Special Servicer, as the case may be, will have no liability to the
Trust, the Certificateholders or any other Person so long as such determination
is based on such criteria.
Section 1.6 Certain Matters with Respect to the Serviced Loan Groups
(a) The parties hereto acknowledge that, pursuant to the related
Co-Lender Agreement, if any Senior Mortgage Loan is no longer part of the Trust
or is no longer serviced pursuant to the terms of this Agreement, the holder of
such Senior Mortgage Loan shall negotiate one or more new servicing agreements
with the applicable Master Servicer and the applicable Special Servicer;
provided that, prior to entering into any such new servicing agreement, the new
holder of such Senior Mortgage Loan shall obtain and provide to the holder of
the related Serviced Companion Loan, Rating Agency Confirmation and written
confirmation from each rating agency then rating any securitization relating to
the related Serviced Companion Loan providing that such new servicing agreement
will not result in the downgrade, qualification or withdrawal of its
then-current ratings of any securities issued in such securitization.
(b) For the avoidance of doubt and subject to subsection (a) above,
the parties acknowledge that the rights and duties of each of the applicable
Master Servicer and the applicable Special Servicer under Article VIII and
Article IX and the obligation of the applicable Master Servicer to make
Advances, insofar as such rights, duties and obligations relate to the Serviced
Loan Group, shall terminate upon the earliest to occur of the following with
respect to the Serviced Loan Group: (i) any repurchase of or substitution for
the related Senior Mortgage Loan by the applicable Seller pursuant to Section
2.3 and (ii) any payment in full of any and all amounts due (or deemed due)
under such Senior Mortgage Loan (or its successor REO Mortgage Loan) (including
amounts to which the holder of such Senior Mortgage Loan is entitled under the
related Co-Lender Agreement); provided, however, that this statement shall not
limit (A) the duty of the applicable Master Servicer or the applicable Special
Servicer to deliver or make available the reports otherwise required of it
hereunder with respect to the Collection Period in which such event occurs or
(B) the rights of the applicable Master Servicer or the applicable Special
Servicer that may otherwise accrue or arise in connection with the performance
of its duties hereunder with respect to a Serviced Loan Group prior to the date
on which such event occurs.
(c) In connection with an event described in clause (ii) of
subsection (b), the Trustee, the Custodian, the applicable Master Servicer and
the applicable Special Servicer shall each tender to the holder of the
applicable Serviced Companion Loan (if then still outstanding), upon delivery to
them of a receipt executed by such holder, all portions of the Mortgage File and
other documents pertaining to such a Serviced Loan Group, possessed by it, and
each document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to such purchaser or holder (or
the designee of such purchaser or holder) in the same manner, and pursuant to
appropriate forms of assignment, substantially similar to the manner and forms
pursuant to which documents were previously assigned to the Trustee by the
related Seller, but in any event, without recourse, representation or warranty;
provided that such tender by the Trustee or the Custodian shall be conditioned
upon its receipt from the applicable Master Servicer of a Request for Release.
The applicable Master Servicer shall, and is also hereby authorized and
empowered by the Trustee to, convey to such holder any deposits then held in an
Escrow Account relating to a Serviced Loan Group. If any Serviced Loan Group is
then an REO Mortgage Loan, then the applicable Special Servicer shall, and is
also hereby authorized and empowered by the Trustee to, convey to such holder,
to the extent not needed to pay or reimburse the applicable Master Servicer, the
applicable Special Servicer or the Trustee in accordance with this Agreement,
deposits then held in the REO Account insofar as such funds relate to the
related REO Property.
(d) If an expense under this Agreement relates, in the reasonable
judgment of the applicable Master Servicer, the applicable Special Servicer, the
Trustee or the Paying Agent, as applicable, primarily to the administration of
the Trust or any REMIC formed hereunder or to any determination respecting the
amount, payment or avoidance of any tax under the REMIC Provisions or the actual
payment of any REMIC tax or expense with respect to any REMIC formed hereunder,
then such expense shall not be allocated to, deducted or reimbursed from, or
otherwise charged against the holder of a Serviced Companion Loan and such
holder shall not suffer any adverse consequences as a result of the payment of
such expense.
Section 1.7 Certain Matters Relating to the Non-Trust Serviced Pari
Passu Loans
(a) With respect to a Non-Trust Serviced Pari Passu Loan, in the
event that the applicable Master Servicer or the Trustee receives notice from
any of DBRS, Fitch or S&P that the applicable Master Servicer or the Trustee, as
applicable, is no longer approved by such Rating Agency as to its eligibility
requirements hereunder, the applicable Master Servicer or the Trustee, as
applicable, shall be required to notify each of the other parties to this
Agreement and the related Other Master Servicer of the same.
(b) With respect to a Non-Trust Serviced Pari Passu Loan, in the
event that the Other Pooling and Servicing Agreement that is servicing the
related Non-Trust Serviced Loan Group is terminated, the applicable Master
Servicer (to the extent that its consent is required under the terms of the
related Co-Lender Agreement) shall not consent to any replacement servicing
agreement until the conditions precedent set forth in such Co-Lender Agreement
are satisfied.
(c) The provisions relating to the Non-Trust Serviced Pari Passu
Loans in this Agreement shall not apply to the Xxxxx Fargo Master Servicer,
whose applicable Mortgage Loans do not include any Non-Trust Serviced Pari Passu
Loan.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans
(a) Effective as of the Closing Date, the Depositor does hereby
assign in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the Depositor's rights under each Mortgage Loan Purchase Agreement that are
permitted to be assigned to the Trustee pursuant to the section thereof under
the heading of "Benefit of Mortgage Loan Purchase Agreement," (iii) the
Depositor's rights under each Co-Lender Agreement and each Other Pooling and
Servicing Agreement, (iv) with respect to each Class of Floating Rate
Certificates, the related Swap Transaction, the related Floating Rate Regular
Interest and funds or assets from time to time on deposit in the related
Floating Rate Account, and (v) all other assets included or to be included in
REMIC I for the benefit of REMIC II and REMIC III. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans and due after the Cut-Off Date. The transfer of the Mortgage Loans and the
related rights and property accomplished hereby is absolute and is intended by
the parties to constitute a sale. In connection with the initial sale of the
Certificates by the Depositor, the purchase price to be paid includes a portion
attributable to interest accruing on the Certificates from and after the Cut-Off
Date. The Trustee, by the execution and delivery of this Agreement, hereby
agrees that each Senior Mortgage Loan and each Serviced Companion Loan remains
subject to its related Co-Lender Agreement. The transfer and assignment of a
Non-Trust Serviced Pari Passu Loan to the Trustee and the right to service such
Mortgage Loan is subject to the terms and conditions of the related Other
Pooling and Servicing Agreement and the Co-Lender Agreement.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Custodian appointed hereunder, on or before the
Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to
the Trustee as specified in clause (i) of the definition of "Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan Purchase
Agreement, to deliver to the Custodian the remaining documents constituting the
Mortgage File for each Mortgage Loan (or, with respect to a Non-Trust Serviced
Pari Passu Loan, copies thereof) within the time period set forth therein. None
of the Trustee, the Paying Agent, the Custodian, any Master Servicer or any
Special Servicer shall be liable for any failure by any Seller or the Depositor
to comply with the document delivery requirements of the Mortgage Loan Purchase
Agreements and this Section 2.1(b). Xxxxx Fargo Bank, National Association shall
act as the initial Custodian hereunder and shall take delivery, hold, examine
and release each Mortgage File in accordance with Sections 2.1, 2.2 and 2.3
hereof.
(c) Each of MSMCH and PCFII shall, at its own expense, for the
Mortgage Loans sold to the Depositor by such Seller, within the time frame set
forth in the related Mortgage Loan Purchase Agreement, and in the case of RBC,
GECC, Nationwide, NatCity and NCB, FSB, the Trustee shall, at the expense of the
related Seller, for the Mortgage Loans sold to the Depositor by such Seller,
promptly (and in any event within 90 days following the receipt of all recording
information necessary to record such document), cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC financing statements, as appropriate, each
assignment to the Trustee referred to in clauses (iv), (vi) and (ix)(B) of the
definition of "Mortgage File" (except with respect to a Non-Trust Serviced Pari
Passu Loan). Each such assignment shall reflect that it should be returned by
the public recording office to the Custodian following recording or filing or
such party responsible for recording such assignment shall be responsible for
forwarding such assignment to the Custodian on behalf of the Trustee (except
with respect to any Mortgage File document recorded in the name of MERS or its
designee); provided that in those instances where the public recording office
retains the original Assignment of Mortgage, assignment of Assignment of Leases
or assignment of UCC financing statements, the Custodian, for all Mortgage Loans
other than the PCFII Loans, and the Primary Servicer for the PCFII Loans, shall
obtain therefrom, at the expense of the applicable Seller, a certified copy of
the recorded original and shall forward copies thereof to the applicable Master
Servicer and the applicable Special Servicer. If any such document or instrument
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, the Custodian, for all Mortgage Loans other than the PCFII
Loans, and the Primary Servicer for the PCFII Loans, shall promptly notify the
applicable Seller and the applicable Seller for its respective Mortgage Loans
shall promptly prepare or cause to be prepared and delivered to the Custodian a
substitute therefor or cure such defect, as the case may be, and thereafter the
Custodian shall upon receipt thereof from such Seller cause the same to be duly
recorded or filed, as appropriate (or such Seller shall promptly cause such
substitute to be duly recorded or filed).
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Custodian, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreements for the PCFII Loans or the applicable exhibit
to the Mortgage Loan Purchase Agreements in favor of the Trustee, the Custodian,
the applicable Master Servicer and the applicable Special Servicer to empower
the Trustee, the Custodian, such Master Servicer and, in the event of the
failure or incapacity of the Trustee, the Custodian and such Master Servicer,
such Special Servicer, to submit for recording, at the expense of the applicable
Seller, any mortgage loan documents required to be recorded as described in the
preceding paragraph and any intervening assignments with evidence of recording
thereon that are required to be included in the Mortgage Files (so long as
original counterparts have previously been delivered to the Trustee). The
Sellers agree to reasonably cooperate with the Trustee, the Custodian, the
applicable Master Servicer and the applicable Special Servicer in connection
with any additional powers of attorney or revisions thereto that are requested
by such parties for purposes of such recordation. The Custodian and each other
party hereto agrees that no such power of attorney shall be used with respect to
any Mortgage Loan by or under authorization by any party hereto except that to
the extent that the absence of a document described in the second preceding
sentence with respect to such Mortgage Loan remains unremedied as of the earlier
of (i) the date that is 180 days following the delivery of notice of such
absence to the related Seller, but in no event earlier than 18 months from the
Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a
Specially Serviced Mortgage Loan. The Custodian shall submit such documents for
recording, at the related Seller's expense, after the periods set forth above;
provided, however, the Custodian shall not submit such assignments for recording
if the applicable Seller produces evidence that it has sent any such assignment
for recording and certifies that it is awaiting its return from the applicable
recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the servicing of any
Mortgage Loans or Serviced Companion Loan and that are not required to be a part
of a Mortgage File in accordance with the definition thereof and are reasonably
necessary for the ongoing administration and/or servicing of the applicable
Mortgage Loan shall be delivered to the Master Servicer (with a copy to the
related Primary Servicer, if applicable), on or before the date that is 75 days
following the Closing Date and shall be held by such Master Servicer or the
related Primary Servicer on behalf of the Trustee in trust for the benefit of
the Certificateholders. To the extent delivered to the Master Servicer and the
related Sub-Servicer or the related Primary Servicer, as applicable, by the
related Seller, the Servicer Mortgage File will consist of the documents listed
in the definition of Mortgage File; provided, however, the Seller shall not be
required to deliver any draft documents, privileged or other communications,
credit, underwriting, legal or other due diligence, analyses, credit committee
briefs or memoranda or other internal approval documents or drafts or internal
worksheets, memoranda, communications or evaluations, to the extent created for
internal use. Delivery of any of the foregoing documents to the applicable
Primary Servicer (or sub-servicer) shall be deemed delivery to the applicable
Master Servicer and satisfy the Depositor's obligations under this Section
2.1(d). Each of the foregoing items may be delivered in electronic form, to the
extent such document is available in such form and such form is reasonably
acceptable to the applicable Master Servicer. None of any Master Servicer, any
Special Servicer or any Primary Servicer shall have any liability for the
absence of any of the foregoing items from the Servicing Mortgage File if such
item was not delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Custodian and the
Master Servicer on or before the Closing Date a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, as in full force and
effect on the Closing Date, which Mortgage Loan Purchase Agreements shall
contain the representations and warranties made by the Sellers with respect to
each related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMCH
Loans from MSMCH, the GECC Loans from GECC, the PCFII Loans from PCFII, the RBC
Loans from RBC, the NCB, FSB Loans from NCB, FSB, the Nationwide Loans from
Nationwide and the NatCity Loans from NatCity. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
MSMCH Loans to the Custodian, endorsed as otherwise provided herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
GECC Loans to the Custodian, endorsed as otherwise provided herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
PCFII Loans to the Custodian, endorsed as otherwise provided herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Note, as described in the definition of Mortgage File) relating to the
RBC Loans to the Custodian, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the NCB, FSB
Loans to the Custodian, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the
Nationwide Loans to the Custodian, endorsed as otherwise provided herein, to
effect the transfer to the Trustee of such Mortgage Notes and all related deeds
of trust, mortgages and other loan documents. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
NatCity Loans to the Custodian, endorsed as otherwise provided herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. To avoid the unnecessary expense and
administrative inconvenience associated with the execution and recording of
multiple assignment documents, MSMCH, GECC, PCFII, RBC, NCB, FSB, Nationwide and
NatCity, as applicable, are required under the Mortgage Loan Purchase Agreements
to deliver Assignments of Mortgages and assignments of Assignments of Leases and
assignments of UCC financing statements in blank or naming the Trustee, on
behalf of the Certificateholders, as assignee. Notwithstanding the fact that the
assignments shall be in blank or name the Trustee, on behalf of the
Certificateholders, as the assignee, the parties hereto acknowledge and agree
that for all purposes the MSMCH Loans shall be deemed to have been transferred
from MSMCH to the Depositor, the GECC Loans shall be deemed to have been
transferred from GECC to the Depositor, the PCFII Loans shall be deemed to have
been transferred from PCFII to the Depositor, the RBC Loans shall be deemed to
have been transferred from RBC to the Depositor, the NCB, FSB Loans shall be
deemed to have been transferred from NCB, FSB to the Depositor, the Nationwide
Loans shall be deemed to have been transferred from Nationwide to the Depositor,
the NatCity Loans shall be deemed to have been transferred from NatCity to the
Depositor, and all Mortgage Loans shall be deemed to have been transferred from
the Depositor to the Trustee on behalf of the Certificateholders.
With respect to a Non-Trust Serviced Pari Passu Loan, the related
Mortgage File (exclusive, however, of the original Mortgage Note), together with
certain other documents and records, and all unapplied Escrow Payments and
Reserve Funds, in the possession of the Depositor or the related Seller that
relate to such Mortgage Loan has been delivered to the related Other Trustee in
accordance with the related Co-Lender Agreement and the related Other Pooling
and Servicing Agreement. Such documents and funds shall be held thereby on
behalf of the Trustee and the holders of the related Non-Trust Serviced
Companion Loan.
Section 2.2 Acceptance by Trustee
The Custodian on the Trustee's behalf will hold the documents
constituting a part of the Mortgage Files delivered to it, and the Trustee will
hold (i) the REMIC I Regular Interests; (ii) the REMIC II Regular Interests, in
each case, in trust for the use and benefit of all present and future
Certificateholders; (iii) the assets of the Class EI Grantor Trust in trust for
the use and benefit of the present and future Holders of the Class EI
Certificates; and (iv) the Floating Rate Regular Interests and the other assets
of the Floating Rate Grantor Trusts for the use and benefit of all present and
future Holders of the related Class of Floating Rate Certificates. To the extent
that the contents of the Mortgage File for a Senior Mortgage Loan relate to a
related Serviced Companion Loan, the Custodian on the Trustee's behalf shall
also hold such Mortgage File in trust for the benefit of the holder of such
Serviced Companion Loan.
On the Closing Date in respect of the Initial Certification, and
within 90 days after the Closing Date in respect of the Final Certification, the
Custodian on the Trustee's behalf shall examine the Mortgage Files in its
possession, and shall deliver to the Depositor, the Sellers, the Master
Servicers, the Special Servicers and the Operating Adviser, a certification (the
"Initial Certification" and the "Final Certification," respectively, in the
respective forms set forth as Exhibit B-1 and Exhibit B-2 hereto), which shall
be in electronic format (i) in the case of the Initial Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, to the
effect that: (A) all documents pursuant to clause (i) of the definition of
Mortgage File are in its possession, (B) such documents have been reviewed by it
and have not been materially mutilated, damaged, defaced, torn or otherwise
physically altered, and such documents relate to such Mortgage Loan, and (C)
each Mortgage Note has been endorsed as provided in clause (i) of the definition
of Mortgage File, and (ii) in the case of the Final Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, to the
effect that: (A) all documents pursuant to clauses (i), (ii), (iv), (vi), (viii)
and (xii) of the definition of Mortgage File required to be included in the
Mortgage File (to the extent required to be delivered pursuant to this Agreement
and any applicable Primary Servicing Agreement), and with respect to all
documents specified in the other clauses of the definition of Mortgage File to
the extent actually known by a Responsible Officer of the Custodian to be
required pursuant to this Agreement (assuming that, with respect to the
documents referred to in clause (xii) of the definition of Mortgage File, an
original letter of credit in the possession of the Custodian is not so required,
unless a Responsible Officer of the Custodian has actual knowledge to the
contrary), are in its possession, (B) such documents have been reviewed by it
and have not been materially mutilated, damaged, defaced, torn or otherwise
physically altered, and such documents relate to such Mortgage Loan, (C) based
on its examination and only as to the Mortgage Note and Mortgage or the
appraisal of the related Mortgaged Property, the street address of the Mortgaged
Property set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in the documents in the Mortgage
File, (D) each Mortgage Note has been endorsed as required by the terms of this
Agreement and (E) the Trustee on behalf of the Trust is shown as the owner of
each Mortgage recorded in the name of MERS. Notwithstanding the foregoing, the
delivery of an original or a copy of a binder, pro forma policy or title
commitment certified by the title company in lieu of the delivery of the actual
Title Insurance Policy shall not be considered a Material Document Defect with
respect to any Mortgage File. The Custodian shall deliver to the Master
Servicers, the Special Servicers, the Operating Adviser and each Seller a copy
of such Final Certification, which may be in electronic format.
Within 360 days after the Cut-Off Date, the Custodian shall provide
a confirmation of receipt of recorded assignments of Mortgage (as described in
the definition of Mortgage File, with evidence of recording thereon) or
otherwise provide evidence of such recordation to the applicable Master
Servicer, the applicable Special Servicer, the Operating Adviser and each
Seller, and if any recorded assignment of Mortgage has not been received by the
Custodian by such time, the Custodian shall provide information in such
confirmation on the status of missing assignments. The Custodian agrees to use
reasonable efforts to submit for recording any unrecorded assignments of
Mortgage that have been delivered to it (including effecting such recordation
process through or cooperating with the applicable Seller) such recordation to
be at the expense of the applicable Seller; provided, however, that the
Custodian shall not submit for recording any such assignments if the applicable
Seller produces evidence that it has sent any such assignment for recording and
is awaiting its return from the applicable recording office. In giving the
certifications required above, the Custodian shall be under no obligation or
duty to inspect, review or examine any such documents, instruments, securities
or other papers to determine whether they or the signatures thereon are valid,
legal, genuine, enforceable, in recordable form or appropriate for their
represented purposes, or that they are other than what they purport to be on
their face, or to determine whether any Mortgage File should include any
assumption agreement, modification agreement, consolidation agreement, extension
agreement, Assignment of Lease, ground lease, UCC financing statement, guaranty,
written assurance, substitution agreement, lock-box agreement, intercreditor
agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to
the Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian of the particular documents showing evidence of the
recordation and/or filing), then the Custodian on behalf of the Trustee shall
continuously update such schedule of exceptions to reflect receipt of any
corrected documents, additional documents or instruments or evidences of
recordation and/or filing, as to each Mortgage Loan, until the earliest of the
following dates: (i) the date on which all such exceptions are eliminated (any
such elimination resulting from the fact that recordation and/or filing has been
completed shall be based solely on receipt by the Custodian of the particular
documents showing evidence of the recordation and/or filing), (ii) the date on
which all the affected Mortgage Loans are removed from the Trust and (iii) the
second anniversary of the Closing Date, and shall provide such updated schedule
of exceptions (which may be in electronic format) to each of the Depositor, each
Seller (as to its respective Mortgage Loans only), the applicable Master
Servicer, the applicable Special Servicer, the Operating Adviser, the Paying
Agent and the holder of a Serviced Companion Loan on or about the date that is
180 days after the Closing Date and then again every 90 days thereafter (until
the earliest date specified above, except, with respect to clause (iii) above,
the Custodian shall continue to provide such updated schedule of exceptions
annually after such date). The Paying Agent shall promptly forward a copy
thereof to each Certificateholder in the Controlling Class and shall deliver or
make available a copy thereof to other Certificateholders pursuant to Sections
5.4(e) and 5.4(f). Promptly, and in any event within two Business Days,
following any request therefor by the Depositor, the applicable Master Servicer,
the applicable Special Servicer, the Operating Adviser or the holder of a
Serviced Companion Loan, as applicable, that is made later than two years
following the Closing Date, the Custodian shall deliver an updated schedule of
exceptions, which may be in electronic format (to the extent the prior schedule
showed exceptions), to the requesting Person and the Paying Agent, which shall
make available a copy thereof pursuant to Section 5.4(e). Upon request, the
applicable Master Servicer shall provide to the Custodian the name and the
address of the holder of each Serviced Companion Loan.
The Custodian or its authorized agents shall retain possession and
custody of each Custodian Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
Other than with respect to any original letters of credit relating
to the PCFII Loans, which original letters of credit shall be held by the
Primary Servicer, the Master Servicer agrees to hold all of the original letters
of credit, which are part of the Mortgage File, in trust for the benefit of the
Trust Fund.
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and Warranties
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required (and including the expiration of any grace or cure period), has not
been properly executed, or is defective on its face or discovers or receives
notice of a breach of any of the representations and warranties relating to the
Mortgage Loans required to be made by a Seller regarding the characteristics of
the Mortgage Loans and/or related Mortgaged Properties as set forth in the
related Mortgage Loan Purchase Agreements, and in either case such defect or
breach either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect," and such a breach described in the preceding
clause (i) or (ii), a "Material Breach") such party shall give prompt written
notice to the other parties hereto and to each Rating Agency subject to the
terms of the applicable Mortgage Loan Purchase Agreement. Promptly (but in any
event within three Business Days) upon becoming aware of any such Material
Document Defect or Material Breach, the applicable Master Servicer shall, and
the applicable Special Servicer may, request that the related Seller, not later
than 90 days from such Seller's receipt of the notice of such Material Document
Defect or Material Breach, cure such Material Document Defect or Material
Breach, as the case may be, in all material respects; provided, however, that if
such Material Document Defect or Material Breach, as the case may be, cannot be
corrected or cured in all material respects within such 90-day period, and such
Material Document Defect or Material Breach would not cause the Mortgage Loan to
be other than a "qualified mortgage" (as defined in the Code) but the related
Seller is diligently attempting to effect such correction or cure, as certified
by such Seller in an Officer's Certificate delivered to the Custodian on behalf
of the Trustee, then the cure period will be extended for an additional 90 days
unless, solely in the case of a Material Document Defect, (x) the Mortgage Loan
is at the end of the initial 90 day period a Specially Serviced Mortgage Loan
and a Servicing Transfer Event has occurred as a result of a monetary default or
as described in clause (ii) or clause (v) of the definition of "Servicing
Transfer Event" and (y) the Material Document Defect was identified in a
certification delivered to the Seller by the Custodian on behalf of the Trustee
pursuant to Section 2.2 not less than 90 days prior to the delivery of the
notice of such Material Document Defect. The parties acknowledge that neither
delivery of a certification or schedule of exceptions to a Seller pursuant to
Section 2.2 or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein. Notwithstanding anything herein to the contrary, any
breach of the representation and warranty contained under the heading
"Prepayment Premiums" in Exhibit 2 to each Mortgage Loan Purchase Agreement with
respect to any Mortgage Loan shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans at the time of origination, as evidenced by (i) an
opinion of tax counsel to such effect or (ii) a determination by the Internal
Revenue Service that such provision is not customary. In addition, if a Material
Breach exists solely because a Mortgage Loan is not a "qualified mortgage" (as
defined in the Code), then if such Mortgage Loan is modified within 90 days of
the discovery of such breach (and, in any event, within two years of the Closing
Date) so that it becomes a "qualified replacement mortgage" within the meaning
of the Code, such breach shall be deemed cured and the related Seller will not
be obligated to repurchase such Mortgage Loan or otherwise remedy such breach.
The related Seller is required to pay for any expenses incurred by the
applicable Master Servicer or the applicable Special Servicer in connection with
such modification. Notwithstanding the foregoing, with respect to a Non-Trust
Serviced Pari Passu Loan, the applicable Master Servicer and the applicable
Special Servicer shall not enforce the related Mortgage Loan Purchase Agreement
if the related Other Master Servicer or Other Special Servicer shall be entitled
to, and shall be, enforcing such Mortgage Loan Purchase Agreement pursuant to
the related Other Pooling and Servicing Agreement on behalf of such Non-Trust
Serviced Pari Passu Loan and in such event any related Liquidation Fee shall be
payable to the related Other Special Servicer to the extent required by the
related Other Pooling and Servicing Agreement and no Liquidation Fee shall be
payable hereunder. However, with respect to any Material Breach or Material
Document Defect that relates solely to a Non-Trust Serviced Pari Passu Loan and
not to the remainder of its Loan Group, and which is not being enforced by the
related Other Master Servicer or Other Special Servicer, the applicable Master
Servicer shall, and the applicable Special Servicer may, proceed as otherwise
described above or below with respect to the enforcement of the related Mortgage
Loan Purchase Agreement, and the applicable Special Servicer may receive a
Liquidation Fee on the related Liquidation Proceeds to the extent otherwise
permitted hereby. Any expenses incurred by the applicable Master Servicer or
Special Servicer in connection with this Section 2.3(a) shall be considered a
Servicing Advance.
If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller that is the subject of such Material Breach shall be obligated,
not later than the last day of such permitted cure period, to (i) repurchase the
affected Mortgage Loan or REO Mortgage Loan from the Trust at the applicable
Purchase Price in accordance with the related Mortgage Loan Purchase Agreement,
or (ii) if within the two-year period commencing on the Closing Date, at the
related Seller's option, replace, without recourse, such Mortgage Loan or REO
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or Material Breach would cause the Mortgage Loan to be other
than a "qualified mortgage" (as defined in the Code), then notwithstanding the
previous sentence, the repurchase or substitution must occur within 90 days from
the earlier of the date the related Seller discovered or was notified of the
breach or defect.
As to any Qualifying Substitute Mortgage Loan or Loans, the
applicable Master Servicer shall not execute any instrument effecting the
substitution unless the related Seller has delivered to the Custodian for such
Qualifying Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the related Assignment of Mortgage, and such other documents and agreements as
are required by Section 2.1, with the Mortgage Note endorsed as required by
Section 2.1 and such Master Servicer shall be entitled to rely on statements and
certifications from the Custodian for this purpose. If the Mortgage related to
the Qualifying Substitute Mortgage Loan has been recorded in the name of MERS or
its designee, the applicable Master Servicer shall use commercially reasonable
efforts (and the Custodian shall cooperate with such efforts of such Master
Servicer) to reflect the release of such Mortgage on the records of MERS. No
substitution may be made in any calendar month after the Determination Date for
such month. Monthly payments due with respect to Qualifying Substitute Mortgage
Loans in the month of substitution shall not be part of the Trust and will be
retained by the applicable Master Servicer and remitted by such Master Servicer
to the related Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the Scheduled
Payment due on the related Deleted Mortgage Loan for such month and thereafter
the related Seller shall be entitled to retain all amounts received in respect
of such Deleted Mortgage Loan.
The applicable Master Servicer shall amend or cause to be amended
the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
and the substitution of the Qualifying Substitute Mortgage Loan or Loans and
upon such amendment such Master Servicer shall deliver or cause to be delivered
such amended Mortgage Loan Schedule to the Custodian, the Paying Agent and the
applicable Special Servicer. Upon such substitution, the Qualifying Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects. Upon receipt of the Custodian Mortgage File pertaining to any
Qualifying Substitute Mortgage Loans, the Custodian shall release the Custodian
Mortgage File relating to such Deleted Mortgage Loan to the related Seller, and
the Custodian on the Trustee's behalf (and the Depositor, if necessary) shall
execute and deliver such instruments of transfer or assignment in the form
presented to it, in each case without recourse, representation or warranty, as
shall be necessary to vest title (to the extent that such title was transferred
to the Trustee or the Depositor) in the related Seller or its designee to any
Deleted Mortgage Loan (including any property acquired in respect thereof or any
insurance policy proceeds relating thereto) substituted for pursuant to this
Section 2.3.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach
(as the case may be) as to each such other Mortgage Loan for purposes of the
above provisions, and the related Seller shall be obligated to repurchase or
replace each such other Mortgage Loan in accordance with the provisions above
unless, in the case of such breach or document defect, both of the following
conditions would be satisfied if the related Seller were to repurchase or
replace only those Mortgage Loans as to which a Material Breach or Material
Document Defect had occurred without regard to this paragraph (the "Affected
Loan(s)"): (1) the debt service coverage ratio for all such other Mortgage Loans
(excluding the Affected Loan(s)) for the four calendar quarters immediately
preceding the repurchase or replacement (determined as provided in the
definition of Debt Service Coverage Ratio, except that net cash flow for such
four calendar quarters, rather than year-end, shall be used) is equal to the
greater of (x) the debt service coverage ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the Final Prospectus Supplement and (y) 1.25x, and (2) the
Loan-to-Value Ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the lesser of (x) the current Loan-to-Value Ratio
for all such Mortgage Loans (including the Affected Loan(s)) set forth under the
heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement and
(y) 75%. The determination of the applicable Master Servicer as to whether the
conditions set forth above have been satisfied shall be conclusive and binding
in the absence of manifest error. The applicable Master Servicer will be
entitled to cause to be delivered, or direct the related Seller to (in which
case the related Seller shall) cause to be delivered to such Master Servicer:
(i) an Appraisal of any or all of the related Mortgaged Properties for purposes
of determining whether the condition set forth in clause (2) above has been
satisfied, in each case at the expense of the related Seller if the scope and
cost of the Appraisal is approved by the related Seller (such approval not to be
unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of each such other Mortgage Loan will not result in an Adverse REMIC
Event.
With respect to any Mortgage Loan that is cross-defaulted and
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the applicable Seller is required to repurchase or substitute for
such Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above
while the Trustee continues to hold any other Mortgage Loan that is
cross-collateralized and cross-defaulted (each, a "Cross-Collateralized Loan")
with such Repurchased Loan, the related Seller and the Depositor have agreed in
the Mortgage Loan Purchase Agreement to modify, prior to such repurchase or
substitution, the related Mortgage Loan documents in a manner such that such
affected Repurchased Loan, on the one hand, and any related
Crossed-Collateralized Loans held by the Trustee, on the other, would no longer
be cross-defaulted or cross-collateralized with one another; provided that the
applicable Seller shall have furnished the Trustee, at the expense of the
applicable Seller, with a Nondisqualification Opinion that such modification
shall not cause an Adverse REMIC Event; provided, further, that if such
Nondisqualification Opinion cannot be furnished, the applicable Seller and the
Depositor have agreed in the applicable Mortgage Loan Purchase Agreement that
such repurchase or substitution of only the Repurchased Loan, notwithstanding
anything to the contrary herein, shall not be permitted and the applicable
Seller shall repurchase or substitute for the Repurchased Loan and all related
Crossed-Collateralized Loans. Any reserve or other cash collateral or letters of
credit securing the Repurchased Loan and the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule
IX hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (a) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (b) the absence
from the Mortgage File of the original signed Mortgage, unless there is included
in the Mortgage File (i) a copy of the Mortgage certified by the local authority
with which the Mortgage was recorded or (ii) a true and correct copy of the
Mortgage together with an Officer's Certificate; or (c) the absence from the
Mortgage File of the item called for by paragraph (viii) of the definition of
Mortgage File (or, with respect to a Non-Trust Serviced Pari Passu Loan, a copy
thereof). If any of the foregoing Material Document Defects is discovered by the
Custodian (or the Trustee if there is no Custodian) or any other party hereto,
the Custodian on behalf of the Trustee (or as set forth in Section 2.3(a), the
applicable Master Servicer) will take the steps described elsewhere in this
section, including the giving of notices to the Rating Agencies and the parties
hereto (and, to the extent that any Material Document Defect relates to a Senior
Mortgage Loan, the holder of the related Serviced Companion Loan(s)) and making
demand upon the related Seller for the cure of the document defect or repurchase
or replacement of the related Mortgage Loan.
(b) If the related 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
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the applicable 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 Section
9.5, Section 9.12, Section 9.15 and Section 9.36, as applicable, of this
Agreement, while pursuing the repurchase claim. Each Seller acknowledges and
agrees that any modification of the Mortgage Loan pursuant to such a work-out
shall not constitute a defense to any repurchase claim nor shall such
modification or work-out change the Purchase Price due from the related Seller
for any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon
such Mortgage Loan and sale of the REO Property, to a Person other than the
related Seller shall be without (i) recourse of any kind (either expressed or
implied) by such Person against the related Seller and (ii) representation or
warranty of any kind (either expressed or implied) by the related Seller 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 related REO Property or Mortgage Loan) shall not prejudice any claim against
the related Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, each Master Servicer or each Special Servicer, as applicable,
shall notify the related Seller of the discovery of the Material Document Defect
or Material Breach and the related Seller shall be required to follow the
procedures set forth in the related Mortgage Loan Purchase Agreement to correct
or cure such Material Document Defect or Material Breach or purchase the REO
Property at the Purchase Price. If a court of competent jurisdiction issues a
final order that the related Seller is or was obligated to repurchase the
related Mortgage Loan or REO Mortgage Loan or the related 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 Section 9.30
hereof, the related Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the related Seller) and the Purchase Price.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, a Special Servicer will not receive a Liquidation
Fee in connection with such liquidation or sale or any portion of the Work-Out
Fee that accrues after the related Seller receives notice of a breach or defect
until a final determination has been made, as set forth in the prior paragraph,
as to whether the related Seller is or was obligated to repurchase such related
Mortgage Loan or REO Property or (y) a repurchase by the related Seller of a
Non-Trust Serviced Pari Passu Loan, where the repurchase obligation has been
enforced by the related Other Master Servicer or Other Special Servicer. Subject
to the last two sentences of the first paragraph of Section 2.3(a), upon such
determination, the applicable Special Servicer will be entitled: (i) with
respect to a determination that the related Seller is or was obligated to
repurchase a Mortgage Loan, to collect a Liquidation Fee, if due in accordance
with the definition thereof, based upon the full Purchase Price of the related
Mortgage Loan or REO Property, with such Liquidation Fee payable by the related
Seller or (ii) with respect to a determination that the related Seller is not or
was not obligated to repurchase a Mortgage Loan (or the Trust decides that it
will no longer pursue a claim against the Seller for repurchase), (A) to collect
a Liquidation Fee based upon the Liquidation Proceeds as received upon the
actual sale or liquidation of such Mortgage Loan or REO Property, and (B)
collect any accrued and unpaid Work-Out Fee, based on amounts that were
collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage
Loan, in each case with such amounts to be paid from amounts in the Certificate
Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
applicable Master Servicer will determine the amount (if any) by which the
aggregate Principal Balance of all such Qualifying Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Principal Balance of all
such Deleted Mortgage Loans (in each case after application of scheduled
principal portion of the monthly payments received in the month of
substitution). The Depositor shall cause the related Seller to deposit the
amount of such shortage into the Certificate Account in the month of
substitution, without any reimbursement thereof. In addition, the Depositor
shall cause the related Seller to deposit into the Certificate Account, together
with such shortage, if any, an amount equal to interest on the Deleted Mortgage
Loans at a rate equal to the sum of the applicable Mortgage Rate from the Due
Date as to which interest was last paid up to the Due Date in the Collection
Period in which such substitution occurs, together with the amount of
unreimbursed Servicing Advances, amounts required to be paid to the applicable
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee, the Paying Agent and the
applicable Master Servicer of such event which notice shall be accompanied by an
Officer's Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the applicable
Master Servicer shall designate the Certificate Account as the account to which
funds in the amount of the Purchase Price are to be wired. Any such purchase of
a Mortgage Loan shall be on a whole loan, servicing released basis.
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Custodian, the applicable
Master Servicer and the applicable Special Servicer shall each tender to the
related Seller, upon delivery to each of them of a receipt executed by such
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it (including, without limitation, all documents
delivered to the Custodian and such Master Servicer pursuant to the related
Mortgage Loan Purchase Agreement), and each document that constitutes a part of
the Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to the related Seller or its designee in the same manner, and
pursuant to appropriate forms of assignment, substantially similar to the manner
and forms pursuant to which documents were previously assigned to the Trustee,
but in any event, without recourse, representation or warranty; provided that
such tender by the Custodian shall be conditioned upon its receipt from the
applicable Master Servicer of a Request for Release. The applicable Master
Servicer shall, and is hereby authorized and empowered by the Trustee to,
prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the applicable Master
Servicer to do so. The applicable Master Servicer shall, and is also hereby
authorized and empowered by the Trustee to, reconvey to the related Seller any
deposits then held in the applicable Escrow Account relating to the Mortgage
Loan being repurchased or substituted for. Each Master Servicer shall indemnify
the Trustee for all costs, liabilities and expenses (including attorneys' fees)
incurred by the Trustee in connection with any negligent or intentional misuse
of any such powers of attorney by such Master Servicer.
(d) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee (or the Custodian) on behalf
of the Certificateholders, respecting any Material Document Defect or Material
Breach. The parties hereunder understand that (i) MSMCH, as Seller under
Mortgage Loan Purchase Agreement I, will be providing the remedies with respect
to the MSMCH Loans, (ii) GECC, as Seller under Mortgage Loan Purchase Agreement
II, will be providing the remedies with respect to the GECC Loans, (iii) PCFII,
as Seller under Mortgage Loan Purchase Agreement III, will be the providing
remedies with respect to the PCFII Loans, (iv) RBC, as Seller under Mortgage
Loan Purchase Agreement IV, will be providing the remedies with respect to the
RBC Loans, (v) NatCity, as Seller under Mortgage Loan Purchase Agreement V, will
be providing the remedies with respect to the NatCity Loans, (vi) NCB, FSB, as
Seller under Mortgage Loan Purchase Agreement VI, will be providing the remedies
with respect to the NCB, FSB Loans and (vii) Nationwide, as Seller under
Mortgage Loan Purchase Agreement VII, will be providing the remedies with
respect to the Nationwide Loans, will be providing the remedies with respect to
the Nationwide Loans. No amendment to this Agreement may change in any manner
the obligations of a Seller under the related Mortgage Loan Purchase Agreement
without the consent of such Seller in writing.
(e) The Trustee shall enforce the provisions of this Section 2.3.
Alternatively, the Trustee may, in its sole discretion, appoint a designee to
enforce such provisions (which, with the applicable Master Servicer's consent,
may be such Master Servicer or which, with the applicable Special Servicer's
consent, may be such Special Servicer).
Section 2.4 Representations and Warranties
The Depositor hereby represents and warrants to the Master
Servicers, the Special Servicers, the Trustee (in its capacity as Trustee of the
Trust) and the Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
Section 2.5 Conveyance of Interests
Effective as of the Closing Date, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, in trust, all the right, title and interest of the Depositor
in and to (i) the assets of REMIC I in exchange for the REMIC I Interests, (ii)
the assets of REMIC II in exchange for the REMIC II Interests, (iii) the assets
of REMIC III in exchange for the REMIC Regular Certificates, (iv) the assets of
the Class EI Grantor Trust in exchange for the Class EI Certificates, (v) the
Class A-MFL Regular Interest and the related Swap Transaction in exchange for
the Class A-MFL Certificates, and (vi) the Class A-JFL Regular Interest and the
related Swap Transaction in exchange for the Class A-JFL Certificates.
Section 2.6 Certain Matters Relating to Non-Trust Serviced Pari
Passu Loans
(a) Notwithstanding anything to the contrary in this Agreement, with
respect to a Non-Trust Serviced Pari Passu Loan, each of the document delivery
requirements set forth herein will be satisfied by the delivery by the related
Seller of copies of each such document specified herein (other than the Mortgage
Note (and all intervening endorsements) evidencing such Non-Trust Serviced Pari
Passu Loan, with respect to which the originals shall be required); provided,
the document delivery requirements for the Assignment of Mortgage, any
assignment of Assignment of Leases and any UCC-2 or UCC-3 financing statement
set forth herein will be satisfied by the delivery by such Seller of copies of
such documents made in favor of the related Other Trustee pursuant to the
related Other Pooling and Servicing Agreement.
(b) Promptly following the Closing Date, the Trustee shall send
written notice (which notice may be delivered electronically) (in the form of
Exhibit BB attached hereto) to related Other Trustee stating that, among other
things, the Trustee is the holder of a Non-Trust Serviced Pari Passu Loan as of
the Closing Date.
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates
(a) The Certificates shall be in substantially the forms set forth
in Exhibits A-1 through A-33 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be determined
by the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Senior Certificates, the Class A-M Certificates, the
Class A-MFL Certificates, the Class A-MA Certificates, the Class A-J
Certificates, the Class A-JFL Certificates and the Class A-JA Certificates will
be issuable in denominations of $25,000 initial Certificate Balance and in any
whole dollar denomination in excess thereof. The Class X-1, Class X-2, 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 and Class S Certificates will be
issuable in denominations of $100,000 initial Certificate Balance or initial
Notional Amount (as applicable) or in any whole dollar denomination in excess
thereof. The Class EI, Class R-I, Class R-II and Class R-III Certificates each
will be issued in minimum Percentage Interests of 10% and integral multiples of
10% in excess thereof and together aggregating the entire 100% Percentage
Interest in each such Class.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification 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. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A Senior, Class A-M,
Class A-MFL, Class A-MA, Class A-J, Class A-JFL, Class A-JA, Class X-1, Class
X-2, 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 and Class S
Certificates that are issued in book-entry form, on the Closing Date, the
Authenticating Agent upon the order of the Depositor shall authenticate
Book-Entry Certificates that are issued to a Clearing Agency or its nominee as
provided in Section 3.7 against payment of the purchase price thereof. With
respect to the Class L, Class M, Class N, Class O, Class P, Class Q, Class S and
Class EI Certificates that are issued in definitive form, on the Closing Date,
the Authenticating Agent upon the order of the Depositor shall authenticate
Definitive Certificates that are issued to the registered holder thereof against
payment of the purchase price thereof.
Section 3.2 Registration
The Paying Agent shall be the initial Certificate Registrar in
respect of the Certificates and the Certificate Registrar shall maintain books
for the registration and for the transfer of Certificates (the "Certificate
Register"). The Certificate Registrar may resign or be discharged or removed by
the Paying Agent or the Certificateholders, and a new successor may be
appointed, in accordance with the procedures and requirements set forth in
Sections 7.6 and 7.7 hereof with respect to the resignation, discharge or
removal of the Paying Agent and the appointment of a successor Paying Agent. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Section 3.3 Transfer and Exchange of Certificates
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
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 held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with a transfer of such Non-Registered
Certificate by the Depositor or one of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit D-1 hereto and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached either as Exhibit D-2A
hereto or as Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer shall be made without
registration under the Securities Act, 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 (such Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, any Master Servicer, any Special Servicer, the Paying Agent, the
Trustee or the Certificate Registrar in their respective capacities as such). If
a transfer of any interest in a Non-Registered Certificate that constitutes a
Book-Entry 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 any interest in such Non-Registered Certificate by the Depositor or
any of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Paying Agent, the Trustee, the Master
Servicers, the Special Servicers 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 Certificate. Any
Certificateholder or Certificate Owner desiring to effect a transfer of
Non-Registered Certificates or interests therein shall, and does hereby agree
to, indemnify the Depositor, each Underwriter, the Trustee, each Master
Servicer, each Special Servicer, the Paying Agent and the Certificate Registrar
against any liability that may result if the transfer is not exempt from such
registration or qualification or is not made in accordance with such federal and
state laws.
(d) No transfer of a Non-Investment Grade Certificate, Class EI
Certificate or Residual Certificate or any interest therein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or Section 4975 of the Code or any
applicable federal, state or local law ("Similar Laws") materially similar to
the foregoing provisions of ERISA or the Code (each, a "Plan"), (B) in
book-entry form to an Institutional Accredited Investor who is not also a
Qualified Institutional Buyer or (C) 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 "plan assets" of a Plan, unless: (i) in the case of a
Non-Investment Grade Certificate that constitutes a Book-Entry Certificate and
is being sold to a Qualified Institutional Buyer, the purchase and holding of
such Certificate or interest therein qualifies for the exemptive relief
available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a
Non-Investment Grade Certificate held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code or materially similar provisions of applicable federal, state or local
law or subject the Depositor, the Trustee, the Paying Agent, the Master
Servicers, the Special Servicers or the Certificate Registrar to any obligation
in addition to those undertaken in this Agreement. Each Person who acquires any
Non-Investment Grade Certificate, Class EI Certificate or Residual Certificate
or interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or, in the case of a
Non-Investment Grade Certificate, unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Non-Investment Grade
Certificate that constitutes a Book-Entry Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that: (i) it
is neither a Plan nor 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 "plan assets" of a Plan; or (ii) in the case of a Non-Investment
Grade Certificate, that the purchase and holding of such Certificate or interest
therein by such Person qualifies for the exemptive relief available under
Sections I and III of PTCE 95-60 or another exemption from the "prohibited
transactions" rules under ERISA by the U.S. Department of Labor. No transfer of
a Class EI or Residual Certificate will be made to any Person that does not make
the representation in clause (i) of the preceding sentence.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United States
Tax Person and shall promptly notify the Certificate Registrar of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate shall
be registered until the Certificate Registrar receives, an affidavit and
agreement substantially in the form attached hereto as Exhibit E-1 (a
"Transfer Affidavit and Agreement") from the proposed Transferee, in form
and substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in a
Residual Certificate, it will endeavor to remain a Permitted Transferee,
that it is a United States Tax Person, that it has historically paid its
debts as they have come due and will continue to do so in the future, that
it understands that its tax liability with respect to the Residual
Certificates may exceed cash flows thereon and it intends to pay such
taxes as they come due, that it will provide the Certificate Registrar
with all information necessary to determine that the applicable paragraphs
of Section 14 of such Transfer Affidavit and Agreement are true or that
Section 14 is not applicable, that it will not cause income with respect
to the Residual Certificate to be attributable to a foreign permanent
establishment or fixed base (within the meaning of an applicable income
tax treaty) of such Person or any other United States Tax Person and that
it has reviewed the provisions of this Section 3.3(e) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Tax Person, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Certificate and (2) not
to transfer its Ownership Interest in such Residual Certificate unless it
provides to the Certificate Registrar a certificate substantially in the
form attached hereto as Exhibit E-2 among other things stating that (x) it
has conducted a reasonable investigation of the financial condition of the
proposed Transferee and, as a result of the investigation, the Transferor
determines that the proposed Transferee had historically paid its debts as
they came due and found no significant evidence that the proposed
Transferee will not continue to pay its debts as they come due in the
future and, (y) it has no actual knowledge that such prospective
Transferee is not a Permitted Transferee or is not a United States Tax
Person.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate that is a "pass-through interest holder" within the
meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) or
is holding an Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder," by purchasing an Ownership Interest in
such Certificate, agrees to give the Certificate Registrar written notice
of its status as such immediately upon holding or acquiring such Ownership
Interest in a Residual Certificate.
(F) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 3.3(e) or if
any Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Tax Person, then the last preceding Holder
of such Residual Certificate that was in compliance with the provisions of
this Section 3.3(e) shall be restored, to the extent permitted by law, to
all rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of the
Trustee, the Master Servicers, the Special Servicers, the Certificate
Registrar or the Paying Agent shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact
not permitted by this Section 3.3(e) 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.
(G) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 3.3(e), or if
any Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Tax Person, and to the extent that the
retroactive restoration of the rights and obligations of the prior Holder
of such Residual Certificate as described in clause (F) above shall be
invalid, illegal or unenforceable, then the Trustee shall have the right,
without notice to the Holder or any prior Holder of such Residual
Certificate, but not the obligation, to sell or cause to be sold such
Residual Certificate to a purchaser selected by the Paying Agent on such
terms as the Paying Agent may choose. Such noncomplying Holder shall
promptly endorse and deliver such Residual Certificate in accordance with
the instructions of the Certificate Registrar. Such purchaser may be the
Certificate Registrar itself or any Affiliate of the Certificate
Registrar. The proceeds of such sale, net of the commissions (which may
include commissions payable to the Certificate Registrar or its
Affiliates), expenses and taxes due, if any, will be remitted by the
Certificate Registrar to such noncomplying Holder. The terms and
conditions of any sale under this clause (G) shall be determined in the
sole discretion of the Certificate Registrar, and the Certificate
Registrar shall not be liable to any Person having an Ownership Interest
in a Residual Certificate as a result of its exercise of such discretion.
The Paying Agent shall make available to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information in its possession
necessary to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is not a Permitted
Transferee, including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of
such Residual Certificate. The Person holding the Ownership Interest in a
Residual Certificate shall be responsible for the reasonable compensation of the
Paying Agent for providing such information. Each Master Servicer shall take all
reasonable action to cooperate with the Paying Agent in making such information
available.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, each Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then current rating of any Class of Certificates;
and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause any REMIC Pool to (x) cease to qualify as
a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Residual Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted
Transferee.
(f) None of the Master Servicers, the Special Servicers, the
Trustee, the Paying Agent or the Certificate Registrar shall have any liability
to the Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e); provided, further, that the
Certificate Registrar shall not register the transfer of a Noneconomic Residual
Interest if it shall have received notice that the Transferor has determined, as
a result of the investigation under Section 3.3(e)(D), that the proposed
Transferee has not paid its debts as they came due or that it will not pay its
debts as they come due in the future. The Certificate Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master Servicers,
the Special Servicers and the Depositor, upon written request, with an updated
copy of the Certificate Register within a reasonable period of time following
receipt of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates
If (A) 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 (B) except in the case of
a mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and interest in the Trust.
In connection with the issuance of any new Certificate under this Section 3.4,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.5 Persons Deemed Owners
Prior to presentation of a Certificate for registration of transfer,
the Master Servicers, the Special Servicers, the Trustee, the Operating Adviser,
the Paying Agent and any agents of the Master Servicers, the Special Servicers,
the Paying Agent, the Trustee or the Operating Adviser may treat the Person in
whose name any Certificate is registered as of the related Record Date as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and none of the Master
Servicers, the Special Servicers, the Trustee, the Paying Agent, the Operating
Adviser or any agent of the Master Servicers, the Special Servicers, the
Trustee, the Paying Agent or the Operating Adviser shall be affected by any
notice to the contrary.
Section 3.6 Access to List of Certificateholders' Names and
Addresses
If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, any Master Servicer, any Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
the Master Servicers, the Special Servicers, the Depositor, the Paying Agent,
the Trustee or the Operating Adviser, as applicable, access during normal
business hours to a current list of the Certificateholders. The expense of
providing any such information requested by such Person shall be borne by the
party requesting such information and shall not be borne by the Certificate
Registrar or the Trustee. Every Certificateholder, by receiving and holding a
Certificate, agrees that the Certificate Registrar and the Trustee shall not be
held accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
Section 3.7 Book-Entry Certificates
(a) The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4,
Class A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL, Class A-JA, Class
X-1, Class X-2, 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 and Class
S Certificates, upon original issuance, each shall be issued in the form of one
or more Certificates representing the Book-Entry Certificates, to be delivered
to the Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency, by, or on behalf of, the Depositor,
provided that any Non-Investment Grade Certificates sold to Institutional
Accredited Investors who are not Qualified Institutional Buyers will be issued
as Definitive Certificates. The Certificates shall initially be registered on
the Certificate Register in the name of Cede & Co., the nominee of the
Depository, as the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Certificates, except as provided in Section 3.9. Unless and until
Definitive Certificates have been issued to the Certificate Owners pursuant to
Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicers, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates) as the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7 conflict
with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall
be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or
the Participants. Pursuant to the Depository Agreement, unless and until
Certificates are issued pursuant to Section 3.9, the initial Clearing
Agency will make book-entry transfers among the Participants and receive
and transmit distributions of principal and interest on the related
Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MFL,
Class A-MA, Class A-J, Class A-JFL, Class A-JA, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J and Class K Certificates sold to
Institutional Accredited Investors shall be represented by the Rule 144A IAI
Global Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Class L, Class M, Class N, Class O, Class
P, Class Q and Class S Certificates initially sold to Institutional Accredited
Investors shall be represented by IAI Definitive Certificates for such Class.
The Certificates evidenced by any Rule 144A IAI Global Certificate or IAI
Definitive Certificate shall be subject to certain restrictions on transfer as
set forth in Section 3.3 hereof and shall bear legend(s) regarding such
restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear or Clearstream; provided, however, that such
interests may be exchanged for interests in the Rule 144A IAI Global Certificate
for such Class in accordance with the certification requirements described in
Section 3.7(f). The Regulation S Permanent Global Certificates shall be
deposited with the Certificate Registrar, as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or Clearstream (as applicable) a Regulation S Certificate;
provided, however, that any Certificate Owner that holds a beneficial interest
in a Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S Certificate
to Euroclear or Clearstream with respect to its interest therein does not need
to deliver any subsequent Regulation S Certificate (unless the certificate
previously delivered is no longer true as of such subsequent date, and such
Certificate Owner must promptly notify Euroclear or Clearstream, as applicable,
thereof). Euroclear or Clearstream, as applicable, shall be required to promptly
deliver to the Certificate Registrar a certificate substantially in the form of
Exhibit I hereto to the effect that it has received the requisite Regulation S
Certificates for each such Class, and no Certificate Owner (or transferee from
any such Certificate Owner) shall be entitled to receive an interest in the
Regulation S Permanent Global Certificate for such Class or any payment or
principal or interest with respect to its interest in such Regulation S
Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or Clearstream with respect to the portion of the
Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release Date). After the Release Date, distributions
due with respect to any beneficial interest in a Regulation S Temporary Global
Certificate shall not be made to the holders of such beneficial interests unless
exchange for a beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation S
Global Certificate may be held by or transferred to a U.S. Person (as defined in
Regulation S) except for exchanges for a beneficial interest in the Rule 144A
IAI Global Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder
of a Global Certificate, the Depository or such nominee, as the case may be,
shall be considered the sole owner and holder of the Certificates represented by
such Global Certificate for all purposes under this Agreement and the
Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee, the Paying Agent and the Certificate Registrar
shall not be affected by any notice to the contrary. Except under the
circumstance described in Section 3.9, owners of beneficial interests in a
Global Certificate will not be entitled to have any portions of such Global
Certificate registered in their names, will not receive or be entitled to
receive physical delivery of Definitive Certificates in certificated form and
shall not be considered the owners or holders of the Global Certificate (or any
Certificates represented thereby) under this Agreement or the Certificates. In
addition, no Certificate Owner of an interest in a Global Certificate shall be
able to transfer that interest except in accordance with the Depository's
applicable procedures (in addition to those under this Agreement and, if
applicable, those of Euroclear and Clearstream).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear or Clearstream, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit H attached hereto),
to exchange all or a portion of such interest (in authorized denominations as
set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A IAI
Global Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such Rule 144A
IAI Global Certificate as described herein; provided, however, that no Exchange
Certification shall be required if any such exchange occurs after the Release
Date. Any holder of an interest in the Rule 144A IAI Global Certificate shall
have the right, upon prior written notice to the Certificate Registrar, the
Depository and Euroclear or Clearstream, as applicable, in the form of an
Exchange Certification, to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Regulation S Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Regulation S Global Certificate as described herein;
provided, however, that if such exchange occurs prior to the Release Date, the
transferee shall acquire an interest in a Regulation S Temporary Global
Certificate only and shall be subject to all of the restrictions associated
therewith described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being exchanged
to reduce the stated principal amount of such Global Certificate by the
denominations of the Certificate or Certificates for which such exchange is to
be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
Section 3.8 Notices to Clearing Agency
Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to the related Certificateholders pursuant to Section 3.9, the
Paying Agent shall give all such notices and communications specified herein to
be given to Holders of the Book-Entry Certificates to the Clearing Agency which
shall give such notices and communications to the related Participants in
accordance with its applicable rules, regulations and procedures.
Section 3.9 Definitive Certificates
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Clearing Agency notifies the Depositor and the Certificate Registrar in writing
that the Clearing Agency is unwilling or unable to continue as depositary for
such Global Certificate and a qualifying successor depositary is not appointed
by the Depositor within 90 days thereof, (ii) the Trustee has instituted or
caused to be instituted or has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under this
Agreement and under such Global Certificate and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or advisable for
the Trustee or its custodian to obtain possession of such Global Certificate, or
(iii) after the occurrence of an Event of Default, Certificate Owners
representing a majority in aggregate outstanding Certificate Balance of such
Global Certificate advise the Clearing Agency through the Participants in
writing (and the Clearing Agency so advises the Depositor, the Certificate
Registrar and the Master Servicers in writing) that the continuation in global
form of the Certificates being evidenced by such Global Certificate is no longer
in their best interests; provided that under no circumstances will Definitive
Certificates be issued to Certificate Owners of the Regulation S Temporary
Global Certificate. Upon notice of the occurrence of any of the events described
in the preceding sentence, the Certificate Registrar shall notify the Clearing
Agency and request the Clearing Agency to notify all Certificate Owners, through
the applicable Participants, of the occurrence of the event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Global Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, the Definitive
Certificates. None of the Depositor, the Trustee, the Paying Agent 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, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Certificate Registrar,
to the extent applicable with respect to such Definitive Certificates, and the
Certificate Registrar, the Trustee and the Paying Agent shall recognize the
Holders of Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances (other than in respect of a
Non-Trust Serviced Loan Group) shall be made as provided herein by (i) the
Capmark Master Servicer with respect to the MSMCH Loans, the GECC Loans, the
PCFII Loans and the NatCity Loans, (ii) the Xxxxx Fargo Master servicer with
respect to the RBC Loans and the Nationwide Loans, and (iii) the NCB Master
Servicer with respect to the NCB, FSB Loans, and, if the applicable Master
Servicer does not make such Advances, by the Trustee, except to the extent that
the applicable Master Servicer or the Trustee determines in accordance with
Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.
Section 4.1 P&I Advances by the Master Servicers
(a) The applicable Master Servicer shall make a P&I Advance in
respect of each Mortgage Loan of the P&I Advance Amount (if greater than zero)
on the Master Servicer Remittance Date. It is understood that the obligation of
each Master Servicer to make such P&I Advances is mandatory and shall apply
through any court appointed stay period or similar payment delay resulting from
any insolvency of the Mortgagor or related bankruptcy. Notwithstanding the
foregoing, the applicable Master Servicer shall not be required to make such P&I
Advance, if such Master Servicer determines, in accordance with Section 4.4
below, that any such P&I Advance would be a Nonrecoverable Advance and shall not
make such P&I Advance if such P&I Advance, if made, would be a Nonrecoverable
Advance as determined by the applicable Special Servicer in accordance with the
Servicing Standard and such Special Servicer has notified such Master Servicer
of such determination not later than 10:00 a.m. (and on a Business Day) on the
date prior to the date on which such Master Servicer would be required to make
such P&I Advance in the absence of a recoverability determination (it being
understood that such Master Servicer shall have no obligation to confirm such
Special Servicer's determination of non-recoverability). Such determination
shall be conclusive and binding on the Trustee and the Certificateholders.
Neither the applicable Master Servicer nor the Trustee shall advance default
interest, Balloon Payments, Prepayment Premiums or any principal and interest
payments in respect of a Non-Trust Serviced Companion Loans or Serviced
Companion Loans. The Master Servicers shall not advance any amount due to be
paid by the Swap Counterparty for distribution to the Floating Rate Certificates
in the event that the Swap Counterparty fails to make a required payment under
the related Swap Transaction. The Special Servicers shall not make P&I Advances
under this Agreement and shall not advance any amount due to be paid by the Swap
Counterparty for distribution to the Floating Rate Certificates in the event
that the Swap Counterparty fails to make a required payment under the related
Swap Transaction.
(b) If a Master Servicer determines that there is a P&I Advance
Amount with respect to its applicable Mortgage Loans for a Distribution Date,
such Master Servicer shall on the Master Servicer Remittance Date either (A)
deposit in the applicable Certificate Account an amount equal to the P&I Advance
Amount or (B) utilize funds in such Certificate Account being held for future
distributions or withdrawals to make such Advance. Any funds being held in a
Certificate Account for future distribution or withdrawal and so used shall be
replaced by the applicable Master Servicer from its own funds by deposit in such
Certificate Account on or before any future Master Servicer Remittance Date to
the extent that funds in such Certificate Account on such Master Servicer
Remittance Date shall be less than payments to the Paying Agent or other Persons
required to be made on such date.
Section 4.1A P&I Advances with Respect to the Non-Trust Serviced
Pari Passu Loans
With respect to a Non-Trust Serviced Pari Passu Loan, the applicable
Master Servicer shall make its determination that it has made a P&I Advance on
such Non-Trust Serviced Pari Passu Loan that is a Nonrecoverable Advance or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance
with respect to such Non-Trust Serviced Pari Passu Loan, and the applicable
Special Servicer shall make its determination in accordance with the Servicing
Standard that such P&I Advance, if made, would constitute a Nonrecoverable
Advance, both determinations to be made in accordance with Section 4.1,
including with regard to any notices required to be delivered to the applicable
Master Servicer by the applicable Special Servicer. Both such determinations
shall be made independently of any determination made by the related Other
Master Servicer under the related Other Pooling and Servicing Agreement in
respect of the related Non-Trust Serviced Companion Loan, and the related Other
Master Servicer shall make its own determination that it has made a P&I Advance
that is a Nonrecoverable Advance (as defined in the related Other Pooling and
Servicing Agreement) or that any proposed P&I Advance, if made, would constitute
a Nonrecoverable Advance (as defined in the related Other Pooling and Servicing
Agreement) with respect to the related Non-Trust Serviced Companion Loan
included in such Loan Group in accordance with the related Other Pooling and
Servicing Agreement. The determination by the applicable Master Servicer, the
related Other Master Servicer or the applicable Special Servicer, as applicable,
that any such P&I Advance is nonrecoverable shall be binding on the related
Other Master Servicer and the applicable Master Servicer, as applicable, the
Certificateholders and the holders of any securities relating to the related
Non-Trust Serviced Companion Loan unless the Trustee or the applicable Master
Servicer, as the case may be, has been advised by the related Other Trustee or
the related Other Master Servicer that the party who made such nonrecoverability
determination no longer has the required rating under the related Other Pooling
and Servicing Agreement.
If the applicable Master Servicer determines that a proposed P&I
Advance, if made, would be, or any outstanding P&I Advance previously made is,
as applicable, a Nonrecoverable Advance, the applicable Master Servicer shall
provide the related Other Master Servicer written notice of such determination
within one Business Day of the date of such determination. If the applicable
Master Servicer receives written notice by the related Other Master Servicer
that it has determined, with respect to the related Non-Trust Serviced Companion
Loan, that any proposed P&I Advance would be, or any outstanding P&I Advance is,
a Nonrecoverable Advance, then such determination shall be binding on the
Certificateholders and none of the applicable Master Servicer or the Trustee
shall make any additional P&I Advances with respect to the related Non-Trust
Serviced Pari Passu Loan unless the applicable Master Servicer has consulted
with the related Other Master Servicer and they agree that circumstances with
respect to such Loan Group have changed such that a proposed future P&I Advance
would not be a Nonrecoverable Advance.
Notwithstanding the foregoing, the applicable Master Servicer shall
continue to have the discretion provided in this Agreement to determine that any
future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a
Nonrecoverable Advance. Once such a determination is made by the applicable
Master Servicer or the applicable Master Servicer receives written notice of
such determination by the related Other Master Servicer, none of the applicable
Master Servicer or the Trustee shall make any additional P&I Advances with
respect to a Non-Trust Serviced Pari Passu Loan until the applicable Master
Servicer has followed the process set forth in this Section 4.1A.
Notwithstanding the foregoing, for so long as the Capmark Master
Servicer is a related Other Master Servicer, the notice from or to such related
Other Master Servicer shall be deemed to be made without actual written notice.
Section 4.2 Servicing Advances
The applicable Master Servicer and, if such Master Servicer does
not, the Trustee to the extent the Trustee receives written notice from such
Master Servicer that such Advance has not been made by such Master Servicer,
shall make Servicing Advances within 5 Business Days after the determination
that such Servicing Advance is necessary (and, in the case of the Trustee,
within 6 Business Days after receipt of such notice (i.e., 5 Business Days after
receipt of such notice and one additional Business Day after the delivery of
notice to the applicable Master Servicer, pursuant to Section 4.3(b) hereof,
that such Master Servicer has not made the required Servicing Advance) or, with
respect to such Master Servicer or the Trustee, such shorter period, as may be
required to avoid a foreclosure of liens for delinquent real estate taxes or a
lapse in insurance coverage, to the extent provided in this Agreement, except to
the extent that such Master Servicer or the Trustee, as applicable, determines
in accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance. If such Master Servicer or the Trustee, as applicable,
determines that such advance would constitute a Nonrecoverable Advance, then
such party shall promptly deliver notice of such determination to the applicable
Special Servicer. Upon receipt of such notice, such Special Servicer shall
promptly determine (with the reasonable assistance of such Master Servicer or
the Trustee, as applicable) whether the payment of such amount is (i) necessary
to preserve the related Mortgaged Property and (ii) would be in the best
interest of the Certificateholders (or, with respect to a Serviced Loan Group,
in the best interests of the Certificateholders and the holder of the related
Serviced Companion Loan, as a collective whole). If such Special Servicer shall
determine that the payment of such amount is (i) necessary to preserve the
related Mortgaged Property and (ii) would be in the best interest of the
Certificateholders (or, with respect to the Serviced Loan Group, in the best
interests of the Certificateholders and the holder of the related Serviced
Companion Loan, as a collective whole), then such Special Servicer shall
promptly direct such Master Servicer or the Trustee, as applicable, in writing
to make such payment and such party shall make such payment from amounts in the
Certificate Account within the time periods set forth herein. Such determination
by such Master Servicer or such Special Servicer shall be conclusive and binding
on the Trustee and the Certificateholders. The applicable Special Servicer shall
not be required to make Servicing Advances under this Agreement, but may make
such Servicing Advances, on an emergency basis, at its option in which event the
applicable Master Servicer shall reimburse such Special Servicer promptly but no
later than 5 Business Days of receipt of a statement therefor sent to the
applicable Master Servicer within 1 Business Day of making such Servicing
Advances. The applicable Special Servicer promptly shall notify the applicable
Master Servicer that a Servicing Advance is required in connection with a
Specially Serviced Mortgage Loan or REO Property, and such Master Servicer shall
make such Servicing Advance within 5 Business Days of receipt of such notice (or
such shorter period as may be required to avoid a foreclosure of liens for
delinquent real estate taxes or a lapse in insurance coverage). In addition, the
applicable Special Servicer shall provide the applicable Master Servicer or the
Trustee with such information in its possession as the applicable Master
Servicer or the Trustee may reasonably request to enable such Master Servicer or
the Trustee, as applicable, to determine whether a requested Servicing Advance
would constitute a Nonrecoverable Advance. Any request by a Special Servicer
that a Master Servicer make a Servicing Advance shall be deemed to be a
determination by such Special Servicer that such requested Servicing Advance is
not a Nonrecoverable Advance and such Master Servicer shall be entitled to
conclusively rely on such determination; provided, that the determination shall
not be binding on any Master Servicer or the Trustee. The applicable Master
Servicer or the applicable Special Servicer may update or change its
recoverability determinations at any time (but not reverse the other Master
Servicer or Special Servicer's determination that an Advance is a Nonrecoverable
Advance). Promptly after discovering that such applicable Master Servicer has
failed to make a Servicing Advance that such Master Servicer is required to make
hereunder, the Paying Agent shall promptly notify the Trustee in writing of the
failure by such Master Servicer to make such Servicing Advance.
The related Other Master Servicer is obligated to make Servicing
Advances (as defined in the related Other Pooling and Servicing Agreement)
pursuant to the related Other Pooling and Servicing Agreement with respect to a
Non-Trust Serviced Pari Passu Loan, and no party to this Agreement shall have
any obligation, and shall not be entitled, to make any Servicing Advances with
respect to such Non-Trust Serviced Pari Passu Loan.
Section 4.3 Advances by the Trustee
(a) To the extent that a Master Servicer fails to make a P&I Advance
by the Master Servicer Remittance Date (other than a P&I Advance that such
Master Servicer determines is a Nonrecoverable Advance), and other than with
respect to a Serviced Companion Loan, the Trustee shall make such P&I Advance to
the extent the Trustee receives written notice from such Master Servicer and/or
the Paying Agent not later than 10:00 a.m. (New York City time) on the
Distribution Date that such Advance has not been made by the applicable Master
Servicer on the Master Servicer Remittance Date unless the Trustee determines
that such P&I Advance, if made, would be a Nonrecoverable Advance (or with
respect to a Non-Trust Serviced Pari Passu Loan, the related Other Master
Servicer makes a nonrecoverability determination as described in Section 4.1A).
To the extent the Trustee is required hereunder to make P&I Advances on the
Mortgage Loans, it shall remit the amount thereof to the Paying Agent for
deposit in the Distribution Account by 1:00 p.m. (New York City time) on each
such Distribution Date. The applicable Master Servicer shall notify the Trustee
in writing as soon as practicable, but not later than 10:00 a.m. (New York City
time) on the Distribution Date if such Master Servicer has failed to make a P&I
Advance. The Trustee shall not advance any amount due to be paid by the Swap
Counterparty for distribution to the Floating Rate Certificates in the event
that the Swap Counterparty fails to make a required payment under the related
Swap Transaction.
(b) To the extent that a Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that such Master Servicer or the applicable Special Servicer
determines is a Nonrecoverable Advance), and a Responsible Officer of the
Trustee receives notice thereof, the Trustee shall notify such Master Servicer
of such failure and the Trustee shall make such Servicing Advance promptly, but
in any event, not later than six Business Days after notice thereof in
accordance with Section 4.2 (i.e., 5 Business Days after receipt of notice by
the Trustee pursuant to Section 4.2 that such Servicing Advance is required to
be made by the applicable Master Servicer, and one additional Business Day after
the delivery of notice to the applicable Master Servicer, as set forth above,
that such Master Servicer has not made the required Servicing Advance) (or such
shorter period as may be required to avoid a foreclosure of liens for delinquent
real estate taxes or a lapse in insurance coverage), unless the Trustee
determines that such Servicing Advance, if made, would be a Nonrecoverable
Advance. If the Trustee determines that such advance would constitute a
Nonrecoverable Advance, then the Trustee shall deliver notice of such
determination to the applicable Special Servicer. Upon receipt of such notice,
such Special Servicer shall determine (with the reasonable assistance of the
Trustee) whether the payment of such amount is (i) necessary to preserve the
related Mortgaged Property and (ii) would be in the best interest of the
Certificateholders. If such Special Servicer shall determine that the payment of
such amount is (i) necessary to preserve the related Mortgaged Property and (ii)
would be in the best interest of the Certificateholders, then such Special
Servicer shall promptly direct the Trustee in writing to make such payment and
the Trustee shall make such payment within five Business Days after receipt of
such notice (or such shorter period as may be required to avoid a foreclosure of
liens for delinquent real estate taxes or a lapse in insurance coverage) from
amounts in the Distribution Account.
Section 4.4 Evidence of Nonrecoverability
(a) If a Master Servicer or a Special Servicer determines at any
time, in its sole discretion, exercised in accordance with the Servicing
Standard, that any Advance previously made (or Unliquidated Advance in respect
thereof) or any proposed Advance, if made, would constitute a Nonrecoverable
Advance, such determination shall be evidenced by an Officer's Certificate
delivered to the Trustee, the applicable Master Servicer or the applicable
Special Servicer, the Paying Agent, the Operating Adviser and the Rating
Agencies (and the holder of a Serviced Companion Loan, if the Advance relates to
the related Serviced Loan Group) promptly upon making such determination, but in
no event later than the Business Day following the date of such determination.
Such Officer's Certificate shall set forth the reasons for such determination of
nonrecoverability, together with, to the extent such information, report or
document is in the applicable Master Servicer's or the applicable Special
Servicer's possession, any related financial information such as related income
and expense statements, rent rolls, occupancy status, property inspections and
any Appraisals performed within the last 12 months on the Mortgaged Property,
and, if such reports are used by the applicable Master Servicer or the
applicable Special Servicer to determine that any P&I Advance or Servicing
Advance, as applicable, would be a Nonrecoverable Advance, any engineers'
reports, environmental surveys, internal final valuations or other information
relevant thereto which support such determination. If the Trustee determines at
any time, in its sole discretion, exercised in good faith, that any portion of
an Advance previously made or a portion of a proposed Advance that the Trustee
is required to make pursuant to this Agreement, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate of a Responsible Officer of the Trustee, delivered to the Depositor,
the applicable Master Servicer, the applicable Special Servicer, the Paying
Agent and the Operating Adviser similar to the Officer's Certificate of a Master
Servicer or a Special Servicer described in the prior sentence. The Trustee
shall not be required to make an Advance that the applicable Master Servicer or
the applicable Special Servicer has previously determined to be a Nonrecoverable
Advance. Notwithstanding any other provision of this Agreement, none of the
Master Servicers, the Special Servicers or the Trustee shall be obligated to,
nor shall it, make any Advance or make any payment that is designated in this
Agreement to be an Advance, if the Trustee determines in its good faith business
judgment and, with respect to the applicable Master Servicer or the applicable
Special Servicer, in accordance with the Servicing Standard, that such Advance
or such payment (including interest accrued thereon at the Advance Rate) would
be a Nonrecoverable Advance. Absent bad faith, the applicable Master Servicer's
determination as to the nonrecoverability of any Advance shall be conclusive and
binding on the Certificateholders and may, in all cases, be relied on by the
Trustee; provided, however, that the applicable Special Servicer may, at its
option, make a determination in accordance with the Servicing Standard that any
P&I Advance or Servicing Advance, if made, would be a Nonrecoverable Advance and
shall deliver to such Master Servicer and the Trustee notice of such
determination; provided, further, however, such Special Servicer shall have no
right to make an affirmative determination that any P&I Advance is or would be
recoverable and, in the absence of a determination by such Special Servicer that
such Advance is or would be a Nonrecoverable Advance, the decision that a P&I
Advance is recoverable shall remain with the applicable Master Servicer or
Trustee, as applicable. Absent bad faith, such determination by the applicable
Special Servicer shall be conclusive and binding on the Certificateholders, the
Master Servicers and the Trustee and the applicable Master Servicer shall have
no obligation to verify such Special Servicer's determination that an Advance
would be non-recoverable. Absent bad faith or breach of the servicing standard
under the related Other Pooling and Servicing Agreement known to the applicable
Master Servicer or the Trustee, as applicable, the determination as to the
nonrecoverability of any principal and interest advance made or proposed to be
made with respect to the related Non-Trust Serviced Companion Loan pursuant to
the related Other Pooling and Servicing Agreement, shall be conclusive and
binding on the Certificateholders and may, in all cases, be relied on by the
Trustee and the applicable Master Servicer unless the Trustee or the applicable
Master Servicer, as the case may be, has been advised by the related Other
Trustee or the related Other Master Servicer that the party who made such
nonrecoverability determination no longer has the required rating under the
related Other Pooling and Servicing Agreement. The applicable Master Servicer
shall consider Unliquidated Advances in respect of prior P&I Advances and
Servicing Advances as outstanding Advances for purposes of nonrecoverability
determinations as if such Unliquidated Advance were a P&I Advance or Servicing
Advance, as applicable.
(b) With respect to a Non-Trust Serviced Pari Passu Loan, the
related Other Master Servicer, the related Other Special Servicer and the
related Other Trustee, as applicable, shall be entitled to reimbursement for
Pari Passu Loan Nonrecoverable Servicing Advances with respect to such Non-Trust
Serviced Pari Passu Loan serviced by the related Other Master Servicer or the
related Other Special Servicer (with, in each case, any accrued and unpaid
interest thereon provided for under the related Other Pooling and Servicing
Agreement) in the manner set forth in Section 5.2(a) Subsection (I)(ii) and
5.2(a) Subsection (I)(iii).
Section 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage Loan
Any unreimbursed Advance funded from each Master Servicer's, each
Special Servicer's or the Trustee's own funds shall accrue interest on a daily
basis, at a per annum rate equal to the Advance Rate, from and including the
date such Advance was made to but not including the date on which such Advance
has been reimbursed; provided, however, that neither the Master Servicers nor
any other party shall be entitled to interest accrued on the amount of any P&I
Advance with respect to any Mortgage Loan for the period commencing on the date
of such P&I Advance and ending on the day on which the grace period applicable
to the related Mortgagor's obligation to make the related Scheduled Payment
expires pursuant to the related Mortgage Loan documents but shall be entitled to
interest on such Advance at the Advance Rate to the extent the Scheduled Payment
remains outstanding beyond the expiration of the grace period. In addition, no
Master Servicer shall be entitled to interest on any particular P&I Advance (or
portion thereof) made thereby to the extent a payment (or portion thereof) is
received but is being held by or on behalf of such Master Servicer in connection
with any dispute, claim or offset. For purposes of determining whether a P&I
Advance is outstanding, amounts collected with respect to a particular Mortgage
Loan or a particular REO Property and treated as collections of principal or
interest shall be applied first to reimburse the earliest P&I Advance and then
each succeeding P&I Advance to the extent not inconsistent with Section 4.6. The
applicable Master Servicer shall use efforts consistent with the Servicing
Standard to collect (but shall have no further obligation to collect), with
respect to the Mortgage Loans (and each Serviced Companion Loan) that are not
Specially Serviced Mortgage Loans, Late Fees and default interest from the
Mortgagor in an amount sufficient to pay Advance Interest incurred and unpaid
with respect to such Mortgage Loan arising on or after the Cut-Off Date. The
applicable Master Servicer shall be entitled to retain Late Fees and default
interest paid by any Mortgagor during a Collection Period with respect to any
Mortgage Loan (other than the portion of such Late Fees and default interest
that relates to the period commencing after the Servicing Transfer Event in
respect of a Specially Serviced Mortgage Loan, as to which the applicable
Special Servicer shall retain Late Fees and default interest with respect to
such Specially Serviced Mortgage Loan, subject to the offsets set forth below)
as additional servicing compensation only to the extent such Late Fees and
default interest with respect to such Mortgage Loan exceed unreimbursed Advance
Interest with respect to such Mortgage Loan arising on or after the Cut-Off
Date. The applicable Special Servicer, with respect to any Specially Serviced
Mortgage Loan, shall (i) pay from any Late Fees and default interest collected
from such Specially Serviced Mortgage Loan (a) any outstanding and unpaid
Advance Interest payable with respect to such Specially Serviced Mortgage Loan
to the applicable Master Servicer, the applicable Special Servicer or the
Trustee, as applicable, and (b) to the Trust, any losses previously incurred by
the Trust with respect to such Specially Serviced Mortgage Loan (other than the
related Special Servicing Fees) and (ii) retain any remaining portion of such
Late Fees and default interest as additional Special Servicer Compensation. It
is hereby acknowledged that the applicable Master Servicer may only waive Late
Fees and default interest to the extent set forth in Section 8.3(a).
Notwithstanding the foregoing, Late Fees and default interest received by the
applicable Master Servicer with respect to a Serviced Loan Group shall be
allocable among the applicable Master Servicer or the applicable Special
Servicer, as the case may be, and the holders of the related Serviced Companion
Loans in accordance with the related Co-Lender Agreement.
Section 4.6 Reimbursement of Advances and Advance Interest
(a) Advances made with respect to each Mortgage Loan, each Serviced
Companion Loan, each Specially Serviced Mortgage Loan or each REO Property
(including Advances later determined to be Nonrecoverable Advances) and Advance
Interest thereon shall be reimbursed to the extent of the amounts identified to
be applied therefor in Section 5.2. The aggregate of the amounts available to
repay Advances and Advance Interest thereon pursuant to Section 5.2 collected in
any Collection Period with respect to Mortgage Loans, each Serviced Companion
Loan, Specially Serviced Mortgage Loans or REO Property shall be an "Available
Advance Reimbursement Amount."
(b) To the extent that Advances have been made on the Mortgage
Loans, any Serviced Companion Loan, any Specially Serviced Mortgage Loans or any
REO Mortgage Loans, the Available Advance Reimbursement Amount with respect to
any Determination Date shall be applied to reimburse (i) the Trustee for any
Advances outstanding to the Trustee with respect to any of such Mortgage Loans,
any Serviced Companion Loan, any of such Specially Serviced Mortgage Loans or
REO Mortgage Loans, plus any Advance Interest owed to the Trustee with respect
to such Advances and then (ii) the applicable Master Servicer and the applicable
Special Servicer for any Advances outstanding to such Master Servicer or such
Special Servicer, as the case may be, with respect to any of such Mortgage
Loans, any Serviced Companion Loan, any of such Specially Serviced Mortgage
Loans or REO Mortgage Loans, plus any Advance Interest owed to the applicable
Master Servicer or the applicable Special Servicer with respect to such
Advances. To the extent that any Advance Interest payable to the applicable
Master Servicer, the applicable Special Servicer or the Trustee with respect to
a Specially Serviced Mortgage Loan or REO Mortgage Loan cannot be recovered from
the related Mortgagor, the amount of such Advance Interest shall be payable to
the Trustee, the applicable Master Servicer or the applicable Special Servicer,
as the case may be, from amounts on deposit in the applicable Certificate
Account (or sub-account thereof) (or, if not available from such Certificate
Account, the other Certificate Account) or the Distribution Account pursuant to
Section 5.2(a) or Section 5.3(b)(ii), to the extent of amounts identified to be
applied thereunder. The Master Servicers', the Special Servicers' and the
Trustee's right of reimbursement under this Agreement for Advances and interest
thereon shall be prior to the rights of the Certificateholders (and, in the case
of a Serviced Companion Loan, the holder of such Serviced Companion Loan) to
receive any amounts recovered with respect to such Mortgage Loans, Serviced
Companion Loans or REO Mortgage Loans.
(c) Advance Interest arising on or after the Cut-Off Date and not
previously paid with respect to any Mortgage Loan will be paid to the Trustee,
the applicable Special Servicer and/or the applicable Master Servicer (in
accordance with the priorities specified in the preceding paragraph) first, from
Late Fees and default interest collected with respect to such Mortgage Loan
during the Collection Period, and then from Excess Liquidation Proceeds then
available prior to payment from any other amounts. Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees and
default interest with respect to a Mortgage Loan will be offset against the
Advance Interest incurred and unpaid with respect to such Mortgage Loan arising
on or after the Cut-Off Date). In the case of a Serviced Loan Group, subject to
the related Co-Lender Agreement, Advance Interest on Servicing Advances payable
to the applicable Master Servicer, the applicable Special Servicer or the
Trustee, as applicable, shall be allocated (i) in the case that the related
Serviced Companion Loans are Pari Passu Loans, to the related Senior Mortgage
Loan and the Serviced Companion Loans, on a pari passu basis, based on their
respective outstanding principal balances and (ii) in the case that the related
Serviced Companion Loan is a Subordinate Loan, then first, to such Subordinate
Loan up to its outstanding principal balance and then, to the related Senior
Mortgage Loan; provided that if there is more than one Subordinate Loan, such
Advance Interest on Servicing Advances shall be allocated to such Subordinate
Loans in reverse order of priority (i.e., first to the most subordinate note and
then to the next subordinate note, etc.)
(d) To the extent that a Special Servicer incurs out-of-pocket
expenses (other than the Servicing Advances pursuant to Section 4.2), in
accordance with the Servicing Standard, in connection with servicing Specially
Serviced Mortgage Loans, the applicable Master Servicer shall, subject to
Section 4.4, reimburse such Special Servicer for such expenditures on the next
succeeding Master Servicer Remittance Date, provided such Special Servicer has
delivered, on or before the related Determination Date, an invoice and a report
substantiating such expenses from such Special Servicer requesting such
reimbursement. All such amounts paid by such Special Servicer and reimbursed by
the applicable Master Servicer shall be a Servicing Advance. In the event that
the applicable Master Servicer fails to reimburse such Special Servicer
hereunder or the applicable Master Servicer determines that such Servicing
Advance was or, if made, would be a Nonrecoverable Advance and the applicable
Master Servicer does not make such payment, such Special Servicer shall notify
the applicable Master Servicer and the Trustee in writing of such nonpayment and
the amount payable to such Special Servicer and shall be entitled to receive
reimbursement from the Trust as an Additional Trust Expense. The applicable
Master Servicer, the Paying Agent and the Trustee shall have no obligation to
verify the amount payable to such Special Servicer pursuant to this Section
4.6(d) and circumstances surrounding the notice delivered by such Special
Servicer pursuant to this Section 4.6(d).
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections
(a) On or prior to the Closing Date, each Master Servicer shall
open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts, which accounts must be Eligible
Accounts, (i) in the case of the Capmark Master Servicer, in the name "Capmark
Finance Inc., as Capmark Master Servicer for LaSalle Bank National Association,
as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16," (ii) in the case of the Xxxxx
Fargo Master Servicer, in the name "Xxxxx Fargo Bank, National Association, as
Xxxxx Fargo Master Servicer for LaSalle Bank National Association, as Trustee
for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16," and (iii) in the case of the NCB
Master Servicer, in the name "NCB, FSB, as NCB Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16"
(collectively, or individually, as the case may be, the "Certificate Account").
The Capmark Master Servicer shall maintain the Certificate Account with respect
to the MSMCH Loans, the GECC Loans, the PCFII Loans and the NatCity Loans other
than the Non-Trust Serviced Pari Passu Loans, the Xxxxx Fargo Master Servicer
shall maintain the Certificate Account with respect to the RBC Loans and the
Nationwide Loans, and the NCB Master Servicer shall maintain the Certificate
Account with respect to the NCB, FSB Loans. On or prior to the Closing Date, in
respect of the Interest Reserve Loans, the Paying Agent shall open, or cause to
be opened, and shall maintain, or cause to be maintained an additional separate
account or accounts in the name of "Xxxxx Fargo Bank, National Association as
Paying Agent on behalf of LaSalle Bank National Association, as Trustee, in
trust for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16" (the "Interest Reserve Account").
(b) On or prior to the date a Master Servicer shall initially
deposit funds in a Certificate Account, such Master Servicer shall give to the
Paying Agent and the Trustee prior written notice of the name and address of the
depository institution(s) at which such accounts are maintained and the account
number of such accounts. The Master Servicers shall take such actions as are
necessary to cause any depository institution holding a Certificate Account to
hold such accounts in the name of the applicable Master Servicer as provided in
Section 5.1(a), subject to such Master Servicer's (or its Primary Servicer's or
its Sub-Servicer's) right to direct payments and investments and its rights of
withdrawal under this Agreement.
(c) The applicable Master Servicer shall deposit, or cause to be
deposited, into its Certificate Account within two Business Days following
receipt, the following amounts received by it (including amounts remitted to
such Master Servicer by the applicable Special Servicer from the applicable REO
Account pursuant to Section 9.14 and amounts received from the Primary Servicers
or Sub-Servicers), other than amounts received by it in respect of interest and
principal on the Mortgage Loans or Serviced Companion Loans due on or before the
Cut-Off Date which shall be remitted to the applicable Seller (provided that
such Master Servicer (I) may retain amounts otherwise payable to such Master
Servicer as provided in Section 5.2(a) rather than deposit them into such
Certificate Account, (II) shall, rather than deposit them in the Certificate
Account, directly remit to the Primary Servicers the applicable Primary
Servicing Fees payable as provided in Section 5.2(a)(iv) (unless already
retained by the applicable Primary Servicer), and (III) shall, rather than
deposit them in a Certificate Account, directly remit the Excess Servicing Fees
to the holders thereof as provided in Section 5.2(a)(iv) (unless already
retained by the applicable holder of the excess servicing rights)):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled
Payments, and any Late Collections in respect thereof, on the
Mortgage Loans and the Serviced Companion Loans;
(B) Interest: all payments on account of interest on the
Mortgage Loans and the Serviced Companion Loans (including Excess
Interest, which shall be payable only to the Class EI
Certificateholders, in each case as provided herein, and excluding
Interest Reserve Amounts to be deposited in the applicable Interest
Reserve Account pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with
respect to the Mortgage Loans and the Serviced Companion Loans;
(D) Insurance Proceeds: all Insurance Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by such Master Servicer into the applicable Escrow Account
and not deposited in the Certificate Accounts;
(E) Condemnation Proceeds: all Condemnation Proceeds other
than proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the related
Mortgagor in accordance with the Servicing Standard, which proceeds
shall be deposited by such Master Servicer into the applicable
Escrow Account and not deposited in the Certificate Accounts;
(F) REO Income: all REO Income received from the applicable
Special Servicer;
(G) Investment Losses: any amounts required to be deposited by
such Master Servicer pursuant to Section 5.1(e) in connection with
losses realized on Eligible Investments with respect to funds held
in the Certificate Accounts and amounts required to be deposited by
the applicable Special Servicer pursuant to Section 9.14(b) in
connection with losses realized on Eligible Investments with respect
to funds held in the REO Accounts;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Compensating Interest: all Compensating Interest received
with respect to the Mortgage Loans; and
(J) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the Certificate Accounts pursuant to
this Agreement, including, but not limited to, Purchase Proceeds of
any Mortgage Loans repurchased by a Seller or the maker of a
representation and warranty with respect to any Mortgage Loan or
substitution shortfall amounts (as described in the ninth paragraph
of Section 2.3(a)) paid by a Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans, any
payments or recoveries in respect of Unliquidated Advances or in
respect of Nonrecoverable Advances paid from principal collections
on the Mortgage Loans pursuant to Section 5.2(a)(II) and, with
respect to the Serviced Companion Loans, all other amounts received
pursuant to the cure and purchase rights or reimbursement
obligations set forth in the related Co-Lender Agreement.
With respect to each Serviced Loan Group, the applicable Master
Servicer shall establish and maintain a sub account of the Certificate Account
for each Serviced Companion Loan (the "Serviced Companion Loan Custodial
Account") into which the applicable Master Servicer shall deposit any amounts
described above that are required to be paid to the holder of such Serviced
Companion Loan pursuant to the terms of the related Co-Lender Agreement, in each
case on the same day as the deposit thereof into the Certificate Account. Each
Serviced Companion Loan Custodial Account shall be held in trust for the benefit
of the holder of the Serviced Companion Loan and shall not be part of any REMIC
Pool.
Remittances from any REO Accounts to the applicable Master Servicer
for deposit in the applicable Certificate Accounts shall be made by the
applicable Special Servicer no later than the Special Servicer Remittance Date.
(d) The Paying Agent, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year
(unless such Distribution Date is the Final Distribution Date), shall deposit in
the applicable Interest Reserve Account in respect of each related Interest
Reserve Loan, an amount equal to one day's interest at the related REMIC I Net
Mortgage Rate (without regard to the provisos in the definition of Adjusted
Mortgage Rate), on the Scheduled Principal Balance of such Mortgage Loan as of
the Due Date in the month in which such Distribution Date occurs, to the extent
a Scheduled Payment or P&I Advance is timely made in respect thereof for such
Due Date (all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, the "Interest Reserve Amount").
Funds in an Interest Reserve Account may be invested and, if
invested, shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the applicable Master Servicer Remittance
Date which will allow the Paying Agent to make withdrawals from such Interest
Reserve Account under Section 5.2(c), and any such Eligible Investment shall not
be sold or disposed of prior to its maturity unless payable on demand. All such
Eligible Investments shall be made in the name of "Xxxxx Fargo Bank, National
Association, as Paying Agent, on behalf of LaSalle Bank National Association, as
Trustee, in trust for the benefit of the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass Through Certificates, Series 2007-IQ16." None of
the Depositor, the Mortgagors, the Special Servicers, the Master Servicers, the
Primary Servicers or the Trustee shall be liable for any loss incurred on such
Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in such Interest Reserve Account
out of its own funds immediately as realized.
(e) Funds in the Certificate Accounts (including the Serviced
Companion Loan Custodial Account) may be invested and, if invested, shall be
invested by, and at the risk of, the Master Servicer in Eligible Investments
selected by such Master Servicer which shall mature, unless payable on demand,
not later than the Business Day immediately preceding the next Master Servicer
Remittance Date, and any such Eligible Investment shall not be sold or disposed
of prior to its maturity unless payable on demand. All such Eligible Investments
shall be made in the name of "LaSalle Bank National Association, as Trustee for
the Holders of the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16 and the holder of each Serviced
Companion Loan, as their interests may appear." None of the Depositor, the
Mortgagors, the Paying Agent or the Trustee shall be liable for any loss
incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the applicable Master Servicer as additional
servicing compensation and shall be subject to its withdrawal at any time from
time to time. The amount of any losses incurred in respect of any such
investments shall be for the account of the applicable Master Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the applicable Certificate Account (and, solely to the
extent that the loss is of an amount credited to the Serviced Companion Loan
Custodial Account, deposit to the Serviced Companion Loan Custodial Account) out
of its own funds immediately as realized. No Master Servicer shall be liable for
any losses incurred in respect of any account which is not controlled by such
Master Servicer or any losses with respect to a default on an Eligible
Investment. If the applicable Master Servicer deposits in or transfers to any
Certificate Account or the Serviced Companion Loan Custodial Account, as the
case may be, any amount not required to be deposited therein or transferred
thereto, it may at any time withdraw such amount or retransfer such amount from
such Certificate Account or such Serviced Companion Loan Custodial Account, as
the case may be, any provision herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if a Master Servicer shall have deposited
in the applicable Certificate Account or the Serviced Companion Loan Custodial
Account, as the case may be, an amount equal to all amounts due under any such
Eligible Investment (net of anticipated income or earnings thereon that would
have been payable to such Master Servicer as additional servicing compensation)
such Master Servicer shall have the sole right to enforce such payment or
performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the applicable Master Servicer of amounts to be used for payment of
Escrow Amounts for the account of the Mortgagor. The applicable Master Servicer
shall deal with these amounts in accordance with the Servicing Standard, the
terms of the related Mortgage Loans and Section 8.3(e) hereof, and the Primary
Servicers will hold any Escrow Accounts relating to the Mortgage Loans that they
service in accordance with the requirements set forth in Section 8.3(e). No
Master Servicer shall release any Escrow Amounts held for "earn-outs" or
performance criteria listed on Schedule XI hereof, without the prior consent of
the Operating Adviser, which consent shall not be unreasonably withheld or
delayed. Within 20 days following the first anniversary of the Closing Date, the
applicable Master Servicer shall deliver to the Trustee, the Paying Agent and
the Operating Adviser, for each Mortgage Loan set forth on Schedule VIII hereto,
a brief statement as to the status of the work or project based on the most
recent information provided by the related Mortgagor. Schedule VIII sets forth
those Mortgage Loans as to which an upfront reserve was collected at the closing
of such Mortgage Loan (and still exists) in an amount in excess of $75,000 with
respect to specific immediate engineering work, completion of additional
construction, environmental remediation or similar one-time projects (but not
with respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance, replacements and
capital improvements or debt service). If the work or project is not completed
in accordance with the requirements of the escrow, the applicable Master
Servicer and the applicable Special Servicer (which shall itself consult with
the Operating Adviser) will consult with each other as to whether there exists a
material default under the underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule XII, as
to which the Scheduled Payment is due in a calendar month on a Due Date
(including any grace period) that may occur after the end of the Collection
Period ending in such calendar month, subject to Section 4.4, the applicable
Master Servicer shall, unless the Scheduled Payment is received before the end
of the Collection Period, make a P&I Advance by deposit to the Certificate
Account on the Master Servicer Remittance Date in an amount equal to the
Scheduled Payment or the Assumed Scheduled Payment, as applicable, and for
purposes of the definition of "Available Distribution Amount" and "Principal
Distribution Amount," such Scheduled Payment or Assumed Scheduled Payment, as
applicable, shall be deemed to have been received in such Collection Period.
With respect to a Non-Trust Serviced Pari Passu Loan, any amounts received by
the applicable Master Servicer pursuant to the related Other Pooling and
Servicing Agreement with respect to a Distribution Date shall be deemed to have
been received by the applicable Master Servicer in the related Collection Period
for purposes of the definition of "Available Distribution Amount" and "Principal
Distribution Amount."
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Account
(a) Subsection (I). Each Master Servicer shall, from time to time,
make withdrawals from the applicable Certificate Accounts and remit them by wire
transfer prior to 2:00 p.m., New York City time, on the related Master Servicer
Remittance Date, in immediately available funds to the account specified in this
Section or otherwise (x) to such account as each shall determine from time to
time of amounts payable to the applicable Master Servicer from the applicable
Certificate Account (or, insofar as they relate to a Serviced Companion Loan,
from the Serviced Companion Loan Custodial Account) pursuant to clauses (i),
(ii), (iii), (iv), (vi), (viii) and (ix) below; (y) to the account specified in
writing by the Paying Agent from time to time of amounts payable to the Paying
Agent and the Trustee from the applicable Certificate Account (or, insofar as
they relate to a Serviced Companion Loan, from the Serviced Companion Loan
Custodial Account) pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and
(xiii) below; provided that if a Master Servicer fails to make any remittance
required by this Subsection (I) to the Paying Agent for deposit in the
Distribution Account on the Master Servicer Remittance Date pursuant to clause
(iii) or (xi) below, such Master Servicer shall pay (from its own funds without
right of reimbursement therefor) to the Paying Agent, for the account of the
Paying Agent, interest on any amount not timely remitted at the Advance Rate
from and including the day the remittance was required to be made to, but not
including, the day on which such remittance is actually made, and,
(notwithstanding any contrary provision of Section 8.28) if such remittance and
payment of interest are made not later than 11:00 a.m. (Eastern time) on the
related Distribution Date, then, insofar as the failure to make such remittance
otherwise constitutes an Event of Default on the part of such Master Servicer,
then such Event of Default shall thereupon be deemed to have been cured; and (z)
to the applicable Special Servicer from time to time of amounts payable to such
Special Servicer from the applicable Certificate Account (or, insofar as they
relate to a Serviced Companion Loan, from the Serviced Companion Loan Custodial
Account) pursuant to clauses (i), (ii), (iv), (vi), (vii) and (ix) below of the
following amounts, from the amounts specified for the following purposes:
(i) Fees: Each of the Capmark Master Servicer and the Xxxxx Fargo
Master Servicer shall pay (A) to itself Late Fees (in excess of amounts
used to pay Advance Interest) relating to the applicable Mortgage Loans
(or Serviced Companion Loans) which are not Specially Serviced Mortgage
Loans, 50% of any Modification Fees relating to the applicable Mortgage
Loans (or Serviced Companion Loans) which are not Specially Serviced
Mortgage Loans (or 100% if consent is not required from the applicable
Special Servicer), 50% of assumption application fees and 50% of any
assumption fees relating to the applicable Mortgage Loans (or Serviced
Companion Loans) which are not Specially Serviced Mortgage Loans that
require Special Servicer approval or 100% of any assumption fees and
assumption application fees relating to the applicable Mortgage Loans
which are not Specially Serviced Mortgage Loans that, with respect to the
assignment, assumption or substitution (a) the consent of the applicable
Special Servicer was not required or (b) is "expressly permitted" pursuant
to the terms of the related Mortgage Loan, 100% of any extension fees
payable to the applicable Master Servicer under Section 8.10, 100% of
defeasance fees to the extent payable under Section 8.3(h) or other fees
payable to the applicable Master Servicer hereunder; provided that any
such fees described in (A) hereof shall be divided between such Master
Servicer and any related Primary Servicer as set forth in the applicable
Primary Servicing Agreement and (B) directly to the applicable Special
Servicer, 50% of any assumption fees and assumption application fee (to
the extent (a) the consent of such Special Servicer was required or (b)
assumption is not "expressly permitted" pursuant to the terms of the
related Mortgage Loan), 50% of modification fees and related charges on
the applicable Mortgage Loans (or Serviced Companion Loans) which are not
Specially Serviced Mortgage Loans (if collected on a transaction which
requires consent from the applicable Special Servicer; otherwise, 100% of
the applicable fee) and, to the extent deposited into a Certificate
Account, 100% of all assumption fees (including assumption application
fees) relating to Specially Serviced Mortgage Loans and, to the extent
provided in Section 9.11(c), Late Fees, Modification Fees, extension fees
and other fees collected on Specially Serviced Mortgage Loans (that are
related to the applicable Mortgage Loans), in each case to the extent
provided for herein from funds paid by or on behalf of the applicable
Mortgagor and, to the extent provided in Section 9.11(c), default interest
(in excess of Advance Interest arising only from that particular Specially
Serviced Mortgage Loan (that are related to the applicable Mortgage Loans)
for which the Late Fees or default interest were collected).
The NCB Master Servicer shall pay (A) to itself Late Fees (in excess
of amounts used to pay Advance Interest) relating to NCB, FSB Loans which
are not Specially Serviced Mortgage Loans, 100% of any Modification Fees
relating to NCB, FSB Loans which are not Specially Serviced Mortgage
Loans, 100% of assumption application fees relating to NCB, FSB Loans that
are not Specially Serviced Mortgage Loans, 50% of any assumption fees
relating to NCB, FSB Loans that are not Specially Serviced Mortgage Loans,
100% of any extension fees payable to such Master Servicer under Section
8.10, 100% of defeasance fees to the extent payable under Section 8.3(h)
or other fees payable to the NCB Master Servicer hereunder; and (B)
directly to the applicable Special Servicer, 50% of any assumption fees on
NCB, FSB Loans that are not Specially Serviced Mortgage Loans and, to the
extent deposited into a Certificate Account, 100% of assumption fees
(including assumption application fees) relating to Specially Serviced
Mortgage Loans (that are NCB, FSB Loans) and, to the extent provided in
Section 9.11(c), Late Fees, Modification Fees and other fees collected on
Specially Serviced Mortgage Loans, in each case to the extent provided for
herein from funds paid by or on behalf of the applicable Mortgagor and, to
the extent provided in Section 9.11(c), default interest (in excess of
Advance Interest arising only from that particular Specially Serviced
Mortgage Loan (that are NCB, FSB Loans) for which the Late Fees or default
interest were collected).
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans and the
Serviced Companion Loans, subject to clause (B) below and subsection (iv)
of Section 5.2(a)(II) below, to reimburse or pay to the Master Servicers,
the Special Servicers and the Trustee, pursuant to Section 4.6, (x) prior
to a Final Recovery Determination or determination in accordance with
Section 4.4 that any Servicing Advance is a Nonrecoverable Advance,
Servicing Advances on the related Mortgage Loan (or Serviced Companion
Loan) from payments made by or on behalf of the related Mortgagor of the
amounts to which a Servicing Advance relates or from REO Income from the
related REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds and, to the extent that a
Servicing Advance has been or is being reimbursed, any related Advance
Interest thereon first, from Late Fees and default interest collected
during the Collection Period, and then from Excess Liquidation Proceeds
then available and then from any other amounts on deposit in the
applicable Certificate Account (or, if not available from such Certificate
Account, the other Certificate Account); provided that Late Fees and
default interest will be applied on a "loan by loan basis" (under which
Late Fees and default interest paid with respect to each Mortgage Loan or
a Serviced Companion Loan, will be offset against the Advance Interest
incurred and unpaid with respect to the particular Mortgage Loan or
Serviced Companion Loan, as applicable, on or after the Cut-Off Date), to
the payment of Advance Interest incurred on or after the Cut-Off Date and
unpaid on all Advances on such Mortgage Loan or (y) after a Final Recovery
Determination or determination that any Servicing Advance on the related
Mortgage Loan or Serviced Companion Loan is a Nonrecoverable Advance, any
Servicing Advances made on the related Mortgage Loan, Serviced Companion
Loan or REO Property, as applicable, from any funds on deposit in the
applicable Certificate Account (or, if not available from such Certificate
Account, the other Certificate Account) (regardless of whether such amount
was recovered from the applicable Mortgage Loan, Serviced Companion Loan
or REO Property) and pay Advance Interest thereon first, from Late Fees
and default interest collected during the Collection Period (applying such
Late Fees and default interest on a "loan by loan basis" to the payment of
Advance Interest incurred and unpaid on all Advances on such Mortgage Loan
or Serviced Companion Loan, as applicable, arising on or after the Cut-Off
Date), then from Excess Liquidation Proceeds then available and then from
any other amounts on deposit in the applicable Certificate Account
(notwithstanding anything herein to the contrary each Master Servicer
shall reimburse itself or such other party pursuant to Section 4.4(b)) and
(B) in the case of a Non-Trust Serviced Pari Passu Loan and from any funds
on deposit in the applicable Certificate Account (or, if not available
from such Certificate Account, the other Certificate Account), to
reimburse the related Other Master Servicer, the related Other Special
Servicer and the related Other Trustee for the related Pari Passu Loan
Nonrecoverable Servicing Advances and any accrued and unpaid interest
thereon provided for under the related Other Pooling and Servicing
Agreement;
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): in the case of the Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to each
Master Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to
a Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income
from the related REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds allocable to the related
Mortgage Loan and, to the extent that a P&I Advance has been or is being
reimbursed, any related Advance Interest thereon, first, from Late Fees
and default interest collected during the Collection Period and allocable
to such Mortgage Loan, and then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account); provided that Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees
and default interest paid with respect to each Mortgage Loan will be
offset against the Advance Interest incurred and unpaid with respect to
the particular Mortgage Loan on or after the Cut-Off Date) or (y) if after
a Final Recovery Determination or determination in accordance with Section
4.4 that any P&I Advance on the related Mortgage Loan is a Nonrecoverable
Advance, for any Mortgage Loan, any P&I Advances made on the related
Mortgage Loan or REO Property from any funds on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account) (regardless of whether such amount was
recovered from the applicable Mortgage Loan or REO Property) and any
Advance Interest thereon, first, from Late Fees and default interest
collected during the Collection Period allocable to such Mortgage Loan
(applying such Late Fees and default interest on a "loan-by-loan basis,"
to the payment of Advance Interest incurred and unpaid on all Advances on
such Mortgage Loan incurred on or after the Cut-Off Date), then from
Excess Liquidation Proceeds then available and then from any other amounts
on deposit in the applicable Certificate Account (or, if not available
from such Certificate Account, the other Certificate Account);
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the applicable Special Servicer the Special Servicing
Fee and the Work-Out Fee and, if applicable, to pay to the Primary
Servicers (or the applicable Master Servicer) the Primary Servicing Fees
and to pay to the parties entitled thereto the Excess Servicing Fees (to
the extent not previously retained by any of such parties);
(v) Trustee Fee: to pay to the Distribution Account for withdrawal
by the Trustee, the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses at the time set
forth herein or in the definition thereof, the payment of which is not
more specifically provided for in this Agreement; provided that the
Depositor shall not be entitled to receive reimbursement for performing
its duties under this Agreement;
(vii) Liquidation Fees: to pay to the applicable Special Servicer
from the applicable Certificate Accounts, the amount certified by such
Special Servicer equal to the Liquidation Fee, to the extent provided in
Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain realized
on the investment of funds deposited in the applicable Certificate
Accounts (including the Serviced Companion Loan Custodial Account);
(ix) Prepayment Interest Excesses: to pay to the Master Servicers
the aggregate Prepayment Interest Excesses relating to the Mortgage Loans
for which they act as Master Servicer which are not Specially Serviced
Mortgage Loans, to the extent not offset by Prepayment Interest Shortfalls
relating to such Mortgage Loans; and to pay to the Master Servicers the
aggregate Prepayment Interest Excesses relating to the Specially Serviced
Mortgage Loans for which they act as Master Servicer, which have received
voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), to the extent not
offset by Prepayment Interest Shortfalls relating to such Specially
Serviced Mortgage Loans;
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Accounts in error;
(xi) Distribution Account: to make payment on each Master Servicer
Remittance Date of the remaining amounts in the applicable Certificate
Accounts (excluding Excess Interest and Excess Liquidation Proceeds) into
the Distribution Account (or in the case of any Excess Interest, deposit
to the Excess Interest Sub-account), other than amounts held for payment
in future periods or pursuant to clause (xii) below and, in the case of
the Capmark Master Servicer, the obligation to make such payments to be
offset by the amount of any Net Swap Payment, as set forth in Section
8.31(b) and Section 6.12; provided, that the Capmark Master Servicer is
provided written notice of the amount of such Net Swap Payment no later
than the second Business Day prior to the Distribution Date;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the Certificate
Accounts pursuant to Section 8.29;
provided, however, that in the case of a Serviced Companion Loan:
(A) the applicable Master Servicer shall be entitled to make
transfers from time to time, from the Serviced Companion Loan Custodial
Account to the portion of the Certificate Account that does not constitute
the Serviced Companion Loan Custodial Account, of amounts necessary for
the payments or reimbursement of amounts described in any one or more of
clauses (i), (ii), (iv), (v), (vi), (vii), (viii), (ix) and (xii) above,
but only insofar as the payment or reimbursement described therein arises
from or is related solely to a Serviced Loan Group and is allocable to the
related Serviced Companion Loan, and the applicable Master Servicer shall
also be entitled to make transfers from time to time, from the Serviced
Companion Loan Custodial Account to the portion of the Certificate Account
that does not constitute the Serviced Companion Loan Custodial Account, of
amounts transferred to the Serviced Companion Loan Custodial Account in
error, and amounts necessary for the clearing and termination of the
Certificate Account pursuant to Section 8.29; provided, however that the
applicable Master Servicer shall not be entitled to make transfers from
the portion of the Certificate Account that does not constitute the
Serviced Companion Loan Custodial Account (other than amounts previously
transferred from the Serviced Companion Loan Custodial Account in
accordance with this clause (A)) of amounts necessary for the payment or
reimbursement of amounts described in any one or more of the foregoing
clauses;
(B) the applicable Master Servicer shall be entitled to make
transfers from time to time, from the Serviced Companion Loan Custodial
Account to the portion of the Certificate Account that does not constitute
the Serviced Companion Loan Custodial Account, of amounts not otherwise
described in clause (A) above to which the holder of each Senior Mortgage
Loan is entitled under the related Co-Lender Agreement (including in
respect of interest, principal and Prepayment Premiums); and
(C) the applicable Master Servicer shall, on either (x) the later of
(i) one (1) Business Day after the related Determination Date or (ii)
alternatively, but only if the Serviced Companion Loan is primary serviced
under a Primary Servicing Agreement, two (2) Business Days after receipt
from the Primary Servicer (unless otherwise provided for in the related
Co-Lender Agreement) or (y) such other date as may be agreed to between
the applicable Master Servicer and the holder of such Serviced Companion
Loan (in their respective sole discretion), remit to the holder of such
Serviced Companion Loan all amounts on deposit in the Serviced Companion
Loan 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 holder of a Serviced Companion Loan is entitled
thereto under the related Co-Lender Agreement, and
Expenses incurred with respect to each Serviced Loan Group shall be
allocated in accordance with the related Co-Lender Agreement. The applicable
Master Servicer shall keep and maintain a separate accounting for each Mortgage
Loan and the Serviced Companion Loans for the purpose of justifying any
withdrawal or transfer from the Certificate Account and the Serviced Companion
Loan Custodial Account, as applicable. If funds collected with respect to the
Senior Mortgage Loan are insufficient to pay amounts due to the Trust as the
holder thereof (or to the parties to this Agreement) pursuant hereto, then the
Master Servicer shall, to the extent permitted by the related Co-Lender
Agreement, be entitled to withdraw the amount of such shortfall from collections
on, and other proceeds of, a Subordinate Loan; provided that if there is more
than one Subordinate Loan, such shortfall shall be allocated to such Subordinate
Loans in reverse order of priority (i.e., first to the most Subordinate Loan,
and then, to the extent that such shortfall still exists, to the next
Subordinate Loan, etc.) or otherwise set forth in the related Co-Lender
Agreement. The applicable Master Servicer shall not be permitted to withdraw any
funds from the portion of the Certificate Account that does not constitute the
Serviced Companion Loan Custodial Account with respect to any liabilities, costs
and expenses that are allocable to the Serviced Companion Loan unless there are
no remaining funds in the Serviced Companion Loan Custodial Account that are
available and required to be used to pay such liability, cost or expense paid in
accordance with the related Co-Lender Agreement. If the applicable Master
Servicer is entitled to make any payment or reimbursement described above and
such payment or reimbursement relates solely to the Serviced Companion Loan, but
is not limited to a specific source of funds (other than the requirement that it
must be made by withdrawal from the Serviced Companion Loan Custodial Account,
insofar as it relates to such Serviced Companion Loan, and is permitted pursuant
to the related Co-Lender Agreement), the applicable Master Servicer shall, if
funds on deposit in the Serviced Companion Loan Custodial Account are
insufficient therefor, request the holder of such Serviced Companion Loan to
make such payment or reimbursement to the extent the holder of such Serviced
Companion Loan is obligated to make such payment or reimbursement pursuant to
the related Co-Lender Agreement. If the holder of the applicable Serviced
Companion Loan fails to make such payment or reimbursement that it is obligated
to make within three Business Days following such request, the applicable Master
Servicer shall be entitled to make such payment or reimbursement from the
Certificate Account (with Advance Interest, if applicable). If such payment or
reimbursement is subsequently recovered from the holder of such Serviced
Companion Loan to the extent that any amounts were previously taken by the
applicable Master Servicer from the Certificate Account, the amount recovered
shall be deposited into the Certificate Account and shall not be deposited into
the Serviced Companion Loan Custodial Account. To the extent that amounts in the
Serviced Companion Loan Custodial Account are not sufficient to fully reimburse
the applicable Master Servicer or the applicable Special Servicer for any fees
and expenses relating solely to a Serviced Companion Loan, the applicable Master
Servicer or the applicable Special Servicer, as applicable, shall be entitled to
seek reimbursement from the holder of the related Serviced Companion Loan.
Subsection (II). The provisions of this subsection II of this
Section 5.2(a) shall apply notwithstanding any contrary provision of subsection
(I) of this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts: If any
Advance made with respect to any Mortgage Loan on or before the date on
which such Mortgage Loan becomes (or, but for the requirement that the
Mortgagor shall have made three consecutive scheduled payments under its
modified terms, would then constitute) a Rehabilitated Mortgage Loan,
together with Advance Interest accrued thereon, is not, pursuant to the
operation of the provisions of Section 5.2(a)(I), reimbursed to the Person
who made such Advance on or before the date, if any, on which such
Mortgage Loan becomes a Rehabilitated Mortgage Loan, such Advance,
together with such Advance Interest, shall constitute a "Workout-Delayed
Reimbursement Amount" to the extent that such amount has not been
determined to constitute a Nonrecoverable Advance. All references herein
to "Workout-Delayed Reimbursement Amount" shall be construed always to
mean the related Advance and any Advance Interest thereon, together with
any further Advance Interest that accrues on the unreimbursed portion of
such Advance from time to time in accordance with the other provisions of
this Agreement. 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.
(ii) General Relationship of Provisions: Subsection (iii) below
(subject to the terms and conditions thereof) sets forth the terms of and
conditions to the right of a Person to be reimbursed for any
Workout-Delayed Reimbursement Amount to the extent that such Person is not
otherwise entitled to reimbursement and payment of such Workout-Delayed
Reimbursement Amount pursuant to the operation of Section 5.2(a)(I) above.
Subsection (iv) below (subject to the terms and conditions thereof)
authorizes the Master Servicer to abstain from reimbursing itself (or, if
applicable, the Trustee to abstain from obtaining reimbursement) for
Nonrecoverable Advances under certain circumstances in its sole
discretion. Upon any determination that all or any portion of a
Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance,
then the reimbursement or payment of such amount (and any further Advance
Interest that may accrue thereon) shall cease to be subject to the
operation of subsection (iii) below, such amount (and further Advance
Interest) shall be as fully payable and reimbursable to the relevant
Person as would any other Nonrecoverable Advance (and Advance Interest
thereon) and, as a Nonrecoverable Advance, such amount may become the
subject of the applicable Master Servicer's (or, if applicable, the
Trustee's) exercise of its sole discretion authorized by subsection (iv)
below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts: Each
Master Servicer, each Special Servicer and the Trustee, as applicable,
shall be entitled to reimbursement and payment for all Workout-Delayed
Reimbursement Amounts in each Collection Period; provided, however, that
the aggregate amount (for all such Persons collectively) of such
reimbursements and payments in such Collection Period shall not exceed
(and the reimbursement and payment shall be made from) the aggregate
amounts in the Certificate Account allocable to principal for such
Collection Period contemplated by clause (I)(A) of the definition of
Principal Distribution Amount (but not including any such amounts that
constitute Advances) and net of any Nonrecoverable Advances then
outstanding and reimbursable from such amounts in the Certificate Account
allocable to principal in accordance with Section 5.2(a)(II)(iv) below. As
and to the extent provided in clause (II)(A) of the definition thereof,
the Principal Distribution Amount for the Distribution Date related to
such Collection Period shall be reduced to the extent that such payment or
reimbursement of a Workout-Delayed Reimbursement Amount is made from
amounts in the Certificate Account allocable to principal pursuant to the
preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Discretion to
Abstain from Reimbursements of Certain Nonrecoverable Advances: To the
extent that Section 5.2(a)(I) otherwise entitles the applicable Master
Servicer, the applicable Special Servicer or Trustee to reimbursement for
any Nonrecoverable Advance (including Workout Delayed Reimbursement
Amounts that have been determined by a Master Servicer, a Special Servicer
or the Trustee to be Nonrecoverable Advances) (or payment of Advance
Interest thereon from a source other than Late Fees and default interest
on the related Mortgage Loan) during any Collection Period, then,
notwithstanding any contrary provision of subsection (I) above, (a) to the
extent that one or more such reimbursements and payments of Nonrecoverable
Advances (and such Advance Interest thereon) are made, such reimbursements
and payments shall be made, first, from the aggregate principal
collections and recoveries on the Mortgage Loans for such Collection
Period contemplated by clause (I)(A) of the definition of Principal
Distribution Amount (but not including any such amounts that constitute
Advances, and prior to any deduction for Workout-Delayed Reimbursement
Amounts (and Advance Interest thereon) that were reimbursed or paid during
the related Collection Period from principal collections on the Mortgage
Loans, as described by clause (II)(A) of the definition of Principal
Distribution Amount and pursuant to subsection (iii) of Section
5.2(a)(II)), and then from other collections (including interest) on the
Mortgage Loans for such Collection Period, and (b) if and to the extent
that the amount of such a Nonrecoverable Advance (and Advance Interest
thereon), together with all Nonrecoverable Advances (and Advance Interest
thereon) theretofore reimbursed during such Collection Period, would
exceed such principal collections and recoveries on the Mortgage Loans for
such Collection Period (and Advance Interest thereon), the applicable
Master Servicer (and the applicable Special Servicer or the Trustee, as
applicable, if it made the relevant Advance) is hereby authorized (but
shall not be construed to have any obligation whatsoever) (as an
accommodation), if it elects at its sole discretion (subject to the
requirement below that the applicable Master Servicer may not defer any
reimbursement for more than 6 Collection Periods without the consent of
the Operating Adviser and, in any event, 12 Collection Periods in the
aggregate), to abstain from reimbursing itself (notwithstanding that it is
entitled to such reimbursement) during that Collection Period for all or a
portion of such Nonrecoverable Advance (and Advance Interest thereon);
provided, however, that no deferment shall be more than the amount by
which the Nonrecoverable Advances (and Advance Interest thereon) exceed
the amount of principal on collection in the Certificate Account. The
applicable Master Servicer or the applicable Special Servicer, in
considering whether an Advance is a Nonrecoverable Advance, shall be
entitled to give due regard to the existence of any outstanding
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with
respect to other Mortgage Loans which, at the time of such consideration,
the reimbursement of which is being deferred or delayed by the applicable
Master Servicer, the applicable Special Servicer or the Trustee because
there is insufficient principal available for such reimbursement, in light
of the fact that proceeds on the related Mortgage Loan are a source of
reimbursement not only for the P&I Advance or Servicing Advance under
consideration, but also as a potential source of reimbursement of such
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is or
may be being deferred or delayed. In connection with a potential election
by the applicable Master Servicer, the applicable Special Servicer or the
Trustee to abstain from the reimbursement of a particular Nonrecoverable
Advance or portion thereof during the Collection Period for any
Distribution Date, the applicable Master Servicer (or the applicable
Special Servicer or the Trustee, as applicable) shall further be
authorized to wait for principal collections to be received before making
its determination of whether to abstain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof until the end of the
Collection Period. Notwithstanding the foregoing, the applicable Master
Servicer (or the applicable Special Servicer or the Trustee, as
applicable) may defer the above reimbursement for no more than 6
Collection Periods without the consent of the Operating Adviser and, in
any event, 12 Collection Periods in the aggregate. If the applicable
Master Servicer (or the applicable Special Servicer or the Trustee, as
applicable), determines, in its sole discretion, that its ability to fully
recover the Nonrecoverable Advances has been compromised or for any other
reason decides not to continue deferral, then the applicable Master
Servicer (or the applicable Special Servicer or the Trustee, as
applicable) will be entitled to immediate reimbursement of such
Nonrecoverable Advance plus interest thereon at the Advance Rate. The
agreement of the applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable) to defer reimbursement of such
Nonrecoverable Advances shall not be construed as an obligation on the
part of such applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable), or a right of the
Certificateholders. No such deferment shall be deemed to create in the
Certificateholders a right to prior payment of distributions over such
Master Servicer's, such Special Servicer's or the Trustee's right to
reimbursement for Advances. Deferred Advances shall continue to earn
interest at the Advance Rate. In all events the decision to defer
reimbursement or seek immediate reimbursement of Nonrecoverable Advances
shall be deemed to be in accordance with the Servicing Standard.
None of the Master Servicers, the Special Servicers or the Trustee
shall have any liability whatsoever for making an election, or refraining from
making an election, that is authorized under this subsection (II)(iv). The
foregoing shall not, however, be construed to limit any liability that may
otherwise be imposed on such Person for any failure by such Person to comply
with the conditions to making such an election under this subsection (II)(iv) or
to comply with the terms of this subsection (II)(iv) and the other provisions of
this Agreement that apply once such an election, if any, has been made.
Any election by a Master Servicer (or a Special Servicer or the
Trustee, as applicable) to abstain from reimbursing itself for any
Nonrecoverable Advance (and Advance Interest thereon) or portion thereof with
respect to any Collection Period shall not be construed to impose on such Master
Servicer (or such Special Servicer or the Trustee, as applicable) any obligation
to make such an election (or any entitlement in favor of any Certificateholder
or any other Person to such an election) with respect to any subsequent
Collection Period or to constitute a waiver or limitation on the right of such
Master Servicer (or such Special Servicer or the Trustee, as applicable) to
otherwise be reimbursed for such Nonrecoverable Advance (and Advance Interest
thereon). Any election by a Master Servicer, a Special Servicer or the Trustee
to abstain from reimbursing itself for any Nonrecoverable Advance or portion
thereof with respect to any one or more Collection Periods shall not limit the
accrual of Advance Interest on the unreimbursed portion of such Nonrecoverable
Advance for the period prior to the actual reimbursement of such Nonrecoverable
Advance. None of the Master Servicers, the Special Servicers, the Trustee or the
other parties to this Agreement shall have any liability to one another, to any
of the Certificateholders or to the holder of a Serviced Companion Loan for any
such election that such party makes as contemplated by this subsection or for
any losses, damages or other adverse economic or other effects that may arise
from such an election. The foregoing statements in this paragraph shall not
limit the generality of the statements made in the immediately preceding
paragraph. Notwithstanding the foregoing, none of the Master Servicers, the
Special Servicers or the Trustee shall have the right to abstain from
reimbursing itself for any Nonrecoverable Advance to the extent of the amount
described in clause (I)(A) of the definition of Principal Distribution Amount.
To the extent that amounts in the Certificate Account allocable to
principal are not sufficient to fully reimburse any Nonrecoverable Advance (with
interest thereon) in any Collection Period and a Master Servicer, a Special
Servicer or the Trustee, as applicable, does not intend to exercise its sole
discretion to defer the reimbursement of such amounts to a subsequent Collection
Period, then the applicable Special Servicer, the applicable Master Servicer or
the Trustee, as applicable, shall give the Rating Agencies at least 15 days'
notice prior to any reimbursement to it of Nonrecoverable Advances from amounts
in the Certificate Account allocable to interest on the Mortgage Loans unless
(1) the applicable Special Servicer, the applicable Master Servicer or the
Trustee, as applicable, determines in its sole discretion that waiting 15 days
after such a notice could jeopardize such Special Servicer's, such Master
Servicer's or the Trustee's, as applicable, ability to recover such
Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to the applicable Special Servicer, the applicable
Master Servicer or the Trustee, as applicable, 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 applicable Special Servicer or the applicable Master
Servicer, as applicable, has not timely received from the Trustee information
requested by the applicable Special Servicer or the applicable Master Servicer,
as applicable, to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the
applicable Special Servicer, the applicable Master Servicer or the Trustee, as
applicable, shall give Rating Agencies notice of an anticipated reimbursement to
it of Nonrecoverable Advances from amounts in the Certificate Account allocable
to interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances.
(v) Reimbursement Rights of the Master Servicers, Special Servicers
and Trustee Are Senior: Nothing in this Agreement shall be deemed to
create in any Certificateholder a right to prior payment of distributions
over the applicable Master Servicer's, the applicable Special Servicer's
or the Trustee's right to reimbursement for Advances plus Advance Interest
(whether those that constitute Workout-Delayed Reimbursement Amounts,
those that have been the subject of the Master Servicer's election
authorized in subsection (iv) or otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the applicable
Certificate Account (or sub-account thereof) and shall be distributed on the
Master Servicer Remittance Date or Dates to which such succeeding Collection
Period or Periods relate; provided, however, that as to (i) the Mortgage Loans
set forth on Schedule XII, for which a Scheduled Payment (including any Balloon
Payment) is due in a month on a Due Date (including any grace period) that is
scheduled to occur after the end of the Collection Period in such month, sums
received by the applicable Master Servicer with respect to such Scheduled
Payment but after the end of such Collection Period shall be applied by such
Master Servicer to reimburse any related P&I Advance made pursuant to Section
5.1(h), and such Master Servicer shall remit to the Distribution Account on any
Master Servicer Remittance Date for a Collection Period any such Scheduled
Payments (including any Balloon Payments) received after the end of such
Collection Period but no later than two Business Days immediately preceding such
Master Servicer Remittance Date on such Mortgage Loans set forth on Schedule
XII, and (ii) the Mortgage Loans set forth on Schedule XIII, for which a
voluntary Principal Prepayment is permitted on any day of the month without the
payment of a full month's interest, the applicable Master Servicer with respect
to such Principal Prepayment shall remit to the Paying Agent for deposit into
the Distribution Account on any Master Servicer Remittance Date for a Collection
Period any Principal Prepayments received after the end of such Collection
Period but no later than two Business Days immediately preceding such Master
Servicer Remittance Date on such Mortgage Loans set forth on Schedule XIII. In
connection with the deposit of any Scheduled Payments and Principal Prepayments
to the Distribution Account in accordance with the immediately preceding
sentence, the applicable Master Servicer shall promptly notify the Paying Agent
and the Paying Agent shall, if it has already reported anticipated distributions
to the Depository, use commercially reasonable efforts to cause the Depository
to make the revised distribution on a timely basis on such Distribution Date.
Neither the applicable Master Servicer nor the Paying Agent nor the Trustee
shall be liable or held responsible for any resulting delay or failure or any
claims or costs incurred in the making of such distribution to
Certificateholders. For purposes of the definition of "Available Distribution
Amount" and "Principal Distribution Amount," the Scheduled Payments and
Principal Prepayments referred to in the preceding proviso shall be deemed to
have been collected in the prior Collection Period. For the avoidance of doubt,
with respect to a Scheduled Payment that is due in a month on a Due Date
(including any grace period) that is scheduled to occur after the end of the
Collection Period in such month as set forth in clause (i) above, it is
understood by the applicable Master Servicer and the Paying Agent that the
Master Servicer's reports set forth in Section 8.11 will not list the related
Mortgage Loan to be in default in respect of such Scheduled Payment so long as
such Scheduled Payment is within such scheduled time frame as of the date of
such reports.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2008 (or February, if the related Distribution Date is the
Final Distribution Date), the Paying Agent shall withdraw all related amounts
then in the applicable Interest Reserve Account and deposit such amounts into
the Distribution Account.
Section 5.3 Distribution Account, Excess Interest Sub-account,
Reserve Account and Floating Rate Accounts
(a) The Paying Agent, on behalf of the Trustee, shall establish
(with respect to clause (i), on or prior to the Closing Date, and with respect
to clause (ii), on or prior to the date the Paying Agent determines is
necessary) and maintain in its name, on behalf of the Trustee, (i) an account
(the "Distribution Account"), which shall include a sub-account in respect of
Excess Interest (the "Excess Interest Sub-account"), to be held in trust for the
benefit of the Holders until disbursed pursuant to the terms of this Agreement,
titled: "Xxxxx Fargo Bank, National Association as Paying Agent on behalf of
LaSalle Bank National Association, as Trustee, in trust for the benefit of the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, Distribution Account" and (ii) an account (the
"Reserve Account") to be held in trust for the benefit of the holders of
interests in the Trust until disbursed pursuant to the terms of this Agreement,
titled: "Xxxxx Fargo Bank, National Association as Paying Agent on behalf of
LaSalle Bank National Association, as Trustee, in trust for the benefit of the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, Reserve Account." The Distribution Account and
the Reserve Account shall be Eligible Accounts. The Distribution Account and the
Reserve Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies of
the Paying Agent held under this Agreement. The Excess Interest Sub-account and
the Reserve Account shall be deemed sub-accounts of the Distribution Account.
Funds in the Distribution Account or the Reserve Account may be
invested and, if invested, shall be invested by, and at the risk of, the Paying
Agent in Eligible Investments selected by the Paying Agent which shall mature,
unless payable on demand, not later than such time on the Distribution Date
which will allow the Paying Agent to make withdrawals from the Distribution
Account or the Reserve Account, as applicable, under Section 5.3(b), and any
such Eligible Investment shall not be sold or disposed of prior to its maturity
unless payable on demand. All such Eligible Investments shall be made in the
name of "Xxxxx Fargo Bank, National Association, as Paying Agent, on behalf of
LaSalle Bank National Association, as Trustee, in trust for the benefit of the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass Through
Certificates, Series 2007-IQ16." None of the Depositor, the Mortgagors, the
Special Servicers, the Master Servicers, the Primary Servicers or the Trustee
shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account or the
Reserve Account, as the case may be, out of its own funds immediately as
realized.
If the Paying Agent deposits in or transfers to the Distribution
Account, as the case may be, any amount not required to be deposited therein or
transferred thereto, it may at any time withdraw such amount or retransfer such
amount from the Distribution Account, as the case may be, notwithstanding any
provision herein to the contrary.
(b) Except as set forth in the next succeeding sentences, the Paying
Agent shall deposit into the Distribution Account or the Reserve Account, as
applicable, on the Business Day received, all moneys remitted by the Master
Servicers pursuant to this Agreement, including P&I Advances made by the Master
Servicers and the Trustee, other than Excess Liquidation Proceeds, into the
Distribution Account and all Excess Liquidation Proceeds into the Reserve
Account. The Paying Agent shall deposit amounts constituting collections of
Excess Interest on the Mortgage Loans into the Excess Interest Sub-account.
Subject to Section 5.1(h), on any Master Servicer Remittance Date, none of the
Master Servicers shall have any duty to remit to the Distribution Account any
amounts other than amounts held in the applicable Certificate Accounts and
collected during the related Collection Period as provided in clauses (v) and
(xi) of Section 5.2(a) and the P&I Advance Amount, and, on the Master Servicer
Remittance Date occurring in March of any year, commencing in March 2008 (or
February, if the related Distribution Date is the Final Distribution Date),
related amounts held in the applicable Interest Reserve Account. The Paying
Agent shall make withdrawals from the Distribution Account (including the Excess
Interest Sub-account) and the Reserve Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicers, the Primary
Servicers, the Special Servicers, the Trustee (including the Trustee's
portion of the Trustee Fee) and itself (including its portion of the
Trustee Fee), or other expenses or other amounts permitted to be paid
hereunder and not previously paid to such Persons pursuant to Section 5.2;
(iii) be deemed to make distributions in respect of the REMIC I
Regular Interests and the REMIC II Regular Interests, to make
distributions to Certificateholders (other than the Holders of the
Floating Rate Certificates) pursuant to Sections 6.5 and 6.11 and to make
distributions to the related Floating Rate Grantor Trust in respect of the
applicable Class of Floating Rate Regular Interest, with a credit for the
amount of the related Net Swap Payment deemed distributed by the Paying
Agent to the applicable Master Servicer's Floating Rate Account pursuant
to Sections 5.3(c) and 6.12; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
(c) On or before the Closing Date, the Paying Agent shall, and, with
respect to the related Net Swap Payments, the Capmark Master Servicer shall,
establish and maintain a separate Class A-MFL Floating Rate Account for the
benefit of the Holders of the Class A-MFL Certificates. On or before the Closing
Date, the Paying Agent shall, and, with respect to the related Net Swap
Payments, the Capmark Master Servicer shall, establish and maintain a separate
Class A-JFL Floating Rate Account for the benefit of the Holders of the Class
A-JFL Certificates. Each Floating Rate Account established by the Capmark Master
Servicer as set forth above shall be described herein as a "Master Servicer's
Floating Rate Account." Each Master Servicer's Floating Rate Account and
Floating Rate Account shall at all times be an Eligible Account and relate
solely to the related Class of Floating Rate Certificates. Each Floating Rate
Account established by the Paying Agent shall be entitled: "Xxxxx Fargo Bank,
National Association, as Paying Agent, on behalf of LaSalle Bank National
Association, as Trustee, in trust for Holders of the Xxxxxx Xxxxxxx Capital I
Trust 2007-IQ16, Floating Rate Account, [Class A-MFL or A-JFL]" and the Paying
Agent shall have the exclusive right to withdraw funds therefrom. Each Master
Servicer's Floating Rate Account established by the Capmark Master Servicer
shall be entitled: "[Name of the Master Servicer], as Master Servicer for
LaSalle Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Trust 2007-IQ16, Floating Rate Account, Class [A-MFL or A-JFL]" and
the Capmark Master Servicer shall have the exclusive right to withdraw funds
therefrom. The Paying Agent shall deposit, or shall be deemed to deposit, into
each Floating Rate Account on or prior to each Distribution Date an amount equal
to those amounts payable under the related Floating Rate Regular Interest (in
each case net of any payments to the Swap Counterparty made pursuant to Section
8.31(b) hereof) pursuant to Article VI hereof and shall deposit into each
Floating Rate Account all amounts received on the related Swap Transaction in
respect of such Distribution Date. With respect to each Master Servicer's
Floating Rate Account, the Paying Agent, pursuant to Section 6.12, shall be
deemed to have transferred, and to have directed the Capmark Master Servicer to
deposit, into each such Master Servicer's Floating Rate Account on or prior to
each Master Servicer Remittance Date an amount equal to that portion payable
under the related Class of Floating Rate Regular Interests pursuant to Article
VI hereof that is equal to the related Net Swap Payments due to the Swap
Counterparty under the related Swap Transaction. Amounts in each Floating Rate
Account shall be held uninvested. The Paying Agent shall make withdrawals from
each Floating Rate Account in the following order of priority and only for the
following purposes:
(i) to withdraw amounts deposited in each such Floating Rate Account
in error and pay such amounts to the Persons entitled thereto;
(ii) to make distributions to the Holders of the related Class of
Floating Rate Certificates pursuant to Section 6.12;
(iii) to withdraw termination payments to purchase a replacement
swap transaction, if applicable;
(iv) to pay the costs and expenses incurred by the Paying Agent in
connection with enforcing the rights of the Trust under the related Swap
Transaction only to the extent such costs and expenses were incurred in
accordance with Section 6.12; provided, that the Paying Agent shall only
be permitted to incur and reimburse itself out of such Floating Rate
Account with respect to any such costs and expenses which are in excess of
any related termination payment received from the Swap Counterparty and
not otherwise applied to offset the expense of entering into a replacement
swap transaction if it has received the written consent of 100% of the
Holders of the related Class of Floating Rate Certificates, or has
received a Rating Agency Confirmation (with respect to the related Class
of Floating Rate Certificates) from each Rating Agency (the expense of
such confirmation to be paid by the Holders of such Class of Floating Rate
Certificates); and
(v) to clear and terminate such Floating Rate Account pursuant to
Section 9.1.
(d) Pursuant to Section 8.31(b), by the close of business on the
second Business Day prior to each Distribution Date the Paying Agent shall
notify the Capmark Master Servicer of the amount of any payments from each
Master Servicer's Floating Rate Account to be made to the Swap Counterparty by
the close of business on each Master Servicer Remittance Date, and the Capmark
Master Servicer shall cause such payments to be made in accordance with this
Agreement and the related Swap Transaction.
Section 5.4 Paying Agent Reports
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicers and the Special
Servicers and delivered to the Paying Agent by such Master Servicers (no later
than 12:00 noon, New York City time on the Report Date), the Paying Agent shall
make available to any interested party via its internet website initially
located at "xxxx://xxx.xxxxxxx.xxx" (the "Paying Agent's Website"), (i) the
Monthly Certificateholders Report (substantially in the form of Exhibit M), (ii)
a report containing information regarding the Mortgage Loans as of the end of
the related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report may
be included as part of the Monthly Certificateholders Report, (iii) the CMSA
Loan Periodic Update File, CMSA Loan Setup File, CMSA Bond Level File and the
CMSA Collateral Summary File, (iv) a CMSA Delinquent Loan Status Report, a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, a CMSA
Historical Liquidation Loss Report, a CMSA Reconciliation of Funds Report, a
CMSA REO Status Report and an CMSA Loan Level Reserve/LOC Report, each
containing substantially the information contemplated in the definition of
Unrestricted Servicer Reports and (v) as a convenience for interested parties
(and not in furtherance of the distribution thereof under the securities laws),
the Final Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicers and the
Special Servicers and delivered to the Paying Agent in accordance herewith, the
Paying Agent shall make available via the Paying Agent's Website, on a
restricted basis, the Restricted Servicer Reports (including the Property File
on or prior to each Distribution Date, commencing in December 2007). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder and any prospective Certificateholder or Certificate
Owner, each of the parties to this Agreement, each of the Rating Agencies, each
of the Underwriters, the Operating Adviser, the Placement Agent and any
Certificate Owner upon receipt (which may be in electronic form) from such
Person of an Investor Certificate in the form of Exhibit Y, and any other Person
upon the direction of the Depositor, any Placement Agent or any Underwriter. For
assistance with the above-mentioned Paying Agent services, Certificateholders or
any party hereto may initially call (000) 000-0000.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Master Servicers or the Special Servicers and shall have
no obligation to verify such information and the Paying Agent may disclaim
responsibility for any information distributed by the Paying Agent for which it
is not the original source. In connection with providing access to the Paying
Agent's Website, the Paying Agent, may require registration and the acceptance
of a disclaimer. None of any Master Servicer, any Special Servicer, any Primary
Servicer or the Paying Agent shall be liable for the dissemination of
information in accordance with this Agreement; provided that this sentence shall
not in any way limit the liability the Paying Agent may otherwise have in the
performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if
required by federal regulation, of any Certificateholder (or the holder of a
Serviced Companion Loan) that is a savings association, bank, or insurance
company, the Paying Agent shall provide (to the extent in its possession) to
each such Certificateholder (or the holder of a Serviced Companion Loan) such
reports and access to non privileged information and documentation regarding the
Mortgage Loans and the Certificates as such Certificateholder (or the holder of
a Serviced Companion Loan) may reasonably deem necessary to comply with
applicable regulations of the Office of Thrift Supervision or successor or other
regulatory authorities with respect to investment in the Certificates; provided
that the Paying Agent shall be entitled to be reimbursed by such
Certificateholder (or the holder of a Serviced Companion Loan) for the Paying
Agent's actual expenses incurred in providing such reports and access. The
holder of a Serviced Companion Loan shall be entitled to receive information and
documentation only with respect to the related Serviced Loan Group pursuant
hereto.
(c) Upon written request, the Paying Agent shall send to each Person
who at any time during the calendar year was a Certificateholder of record,
customary information as the Paying Agent xxxxx xxx be necessary or desirable
for such Holders to prepare their federal income tax returns.
(d) [Reserved]
(e) The Paying Agent shall afford the Rating Agencies, the
Depositor, the Master Servicers, the Special Servicers, the Primary Servicers,
the Trustee, the Operating Adviser, any Certificateholder, prospective
Certificate Owner or any Person reasonably designated by any Placement Agent, or
any Underwriter upon reasonable notice and during normal business hours,
reasonable access to all relevant, non-attorney privileged records and
documentation regarding the applicable Mortgage Loans, REO Property and all
other relevant matters relating to this Agreement, and access to Responsible
Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however, that the Paying Agent shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicers, the Special Servicers, the Trustee, the
Operating Adviser, the Placement Agent or any Underwriter or any Rating Agency)
of a sum sufficient to cover the reasonable expenses actually incurred by the
Paying Agent of providing access or copies (including electronic or digital
copies) of any such information requested in accordance with the preceding
sentence.
(g) The Trustee or the Custodian shall make available at its
Corporate Trust Office (either in physical or electronic form), during normal
business hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any prospective Certificate Owner, any
Placement Agent, the Underwriters, each Rating Agency, the Special Servicers,
the Depositor and, solely with respect to a Serviced Loan Group, the holder of
the related Serviced Companion Loan, originals or copies of, among other things,
the following items: (i) the most recent property inspection reports in the
possession of the Trustee in respect of each Mortgaged Property and REO
Property, (ii) the most recent Mortgaged Property/REO Property annual operating
statement and rent roll, if any, collected or otherwise obtained by or on behalf
of the Master Servicers or the Special Servicers and delivered to the Trustee or
the Custodian, and (iii) any Phase I Environmental Report or engineering report
prepared or appraisals performed in respect of each Mortgaged Property and
delivered to the Trustee or the Custodian; provided, however, that the Trustee
or the Custodian shall be permitted to require payment by the requesting party
(other than either Rating Agency or the Operating Adviser) of a sum sufficient
to cover the reasonable expenses actually incurred by the Trustee or the
Custodian of providing access or copies (including electronic or digital copies)
of any such information reasonably requested in accordance with the preceding
sentence.
Section 5.5 Paying Agent Tax Reports
The Paying Agent shall perform all reporting and other tax
compliance duties that are the responsibility of each REMIC Pool, each Floating
Rate Grantor Trust and the Class EI Grantor Trust under the Code, the REMIC
Provisions or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority, as applicable. Consistent with this
Pooling and Servicing Agreement, the Paying Agent shall provide or cause to be
provided (i) to the United States Department of Treasury or other Persons
(including, but not limited to, the Transferor of a Class R-I, Class R-II or
Class R-III Certificate, to a Disqualified Organization or to an agent that has
acquired a Class R-I, Class R-II or Class R-III Certificate on behalf of a
Disqualified Organization) such information as is necessary for the application
of any tax relating to the transfer of a Class R-I, Class R-II or Class R-III
Certificate to any Disqualified Organization and (ii) to the Certificateholders
such information or reports as are required by the Code or the REMIC Provisions.
Each Master Servicer and the Depositor shall on a timely basis provide the
Paying Agent with such information concerning the Mortgage Loans as is necessary
for the preparation of the tax or information returns or receipts of each REMIC
Pool, each Floating Rate Grantor Trust and the Class EI Grantor Trust as the
Paying Agent may reasonably request from time to time. Each Special Servicer is
required to provide to the applicable Master Servicers all information in its
possession with respect to the Specially Serviced Mortgage Loans and REO
Property in order for such Master Servicers to comply with its obligations under
this Section 5.5. The Paying Agent shall be entitled to conclusively rely on any
such information provided to it by the Depositor, the Master Servicers or the
Special Servicers and shall have no obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally
Subject to Section 10.2(a), respecting the final distribution on the
Certificates, on each Distribution Date, the Paying Agent shall (1) first,
withdraw from the Distribution Account and pay to the Trustee any unpaid fees,
expenses and other amounts then required to be paid pursuant to this Agreement,
and then, to the Paying Agent, any unpaid fees, expenses and other amounts then
required to be paid pursuant to this Agreement, and then at the written
direction of each Master Servicer, withdraw from the Distribution Account and
pay to such Master Servicer, the Primary Servicers and the Special Servicers any
unpaid servicing compensation or other amounts currently required to be paid
pursuant to this Agreement (to the extent not previously retained or withdrawn
by the Master Servicers from the applicable Certificate Accounts), and (2)
second, make distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five days
prior to the related Record Date) made by a Certificateholder by wire transfer
in immediately available funds to an account specified in the request of such
Certificateholder; provided that (i) remittances to the Paying Agent shall be
made by wire transfer of immediately available funds to the Distribution Account
and the Reserve Account; and (ii) the final distribution in respect of any
Certificate shall be made only upon presentation and surrender of such
Certificate at such location specified by the Paying Agent in a notice delivered
to Certificateholders pursuant to Section 10.2(a). If any payment required to be
made on the Certificates is to be made on a day that is not a Business Day, then
such payment will be made on the next succeeding Business Day without
compensation for such delay. All distributions or allocations made with respect
to Holders of Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding interests in such Class in proportion to their
respective initial Certificate Balances or Percentage Interests for the Class X
Certificates.
Section 6.2 REMIC I
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute (with a credit for an amount equal to any Net Swap Payment that was
deemed distributed by the Paying Agent to the applicable Master Servicer's
Floating Rate Account on the immediately preceding Master Servicer Remittance
Date pursuant to Section 8.31(b)) to itself on behalf of the Trustee, as holder
of the REMIC I Regular Interests, for the following purposes and in the
following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect
to each Mortgage Loan or related REO Property, Distributable Certificate
Interest to each Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount,
attributable to principal collected or deemed collected on or with respect
to each Mortgage Loan or related REO Property, principal to the
Corresponding REMIC I Regular Interest, until the Certificate Balance
thereof is reduced to zero;
(iii) any remaining funds with respect to each Mortgage Loan or
related REO Property, to reimburse any Realized Losses previously
allocated to the REMIC I Regular Interests, plus interest on such Realized
Losses at the related REMIC I Net Mortgage Rate previously allocated
thereto; and
(iv) thereafter, to the Class R-I Certificateholders, at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests
have been reduced to zero, and Realized Losses previously allocated
thereto have been reimbursed to the Holders of the REMIC I Regular
Interests, any amounts remaining with respect to each Mortgage Loan or
related REO Property, to the extent of the Trust's interest therein.
Section 6.3 REMIC II
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute (with a credit for an amount equal to any Net Swap Payment that was
deemed distributed by the Paying Agent to the applicable Master Servicer's
Floating Rate Account on the immediately preceding Master Servicer Remittance
Date pursuant to Section 8.31(b)) to itself, as holder of the REMIC II Regular
Interests, amounts distributable to any Class of Principal Balance Certificates
(other than the Floating Rate Certificates) and Floating Rate Regular Interests
pursuant to Section 6.5 or Section 10.1 on each Corresponding REMIC II Regular
Interest; provided that interest shall be deemed to have been distributed pro
rata among two or more Corresponding REMIC II Regular Interests that correspond
to a Class of Principal Balance Certificates (other than the Floating Rate
Certificates) and Floating Rate Regular Interests; and provided, further, that
distributions of principal:
(i) with respect to the Class A-1 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-1-1; and second, to REMIC II Regular Interest A-1-2;
in each case, until their respective Certificate Balances are reduced to
zero;
(ii) with respect to the Class A-1A Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-1A-1; second, to REMIC II Regular Interest A-1A-2;
third, to REMIC II Regular Interest A-1A-3; fourth, to REMIC II Regular
Interest A-1A-4; fifth, to REMIC II Regular Interest A-1A-5; sixth, to
REMIC II Regular Interest A-1A-6; seventh, to REMIC II Regular Interest
A-1A-7; eighth, to REMIC II Regular Interest A-1A-8; and ninth, to REMIC
II Regular Interest A-1A-9; in each case, until their respective
Certificate Balances are reduced to zero;
(iii) with respect to the Class A-2 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-2-1; and second, to REMIC II Regular Interest A-2-2;
in each case, until their respective Certificate Balances are reduced to
zero;
(iv) with respect to the Class A-3 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-3-1; and second, to REMIC II Regular Interest A-3-2;
in each case, until their respective Certificate Balances are reduced to
zero;
(v) with respect to the Class A-4 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-4-1; second, to REMIC II Regular Interest A-4-2;
third, to REMIC II Regular Interest A-4-3; fourth, to REMIC II Regular
Interest A-4-4; fifth, to REMIC II Regular Interest A-4-5; and sixth, to
REMIC II Regular Interest A-4-6; in each case, until their respective
Certificate Balances are reduced to zero;
(vi) with respect to the Class C Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest C-1; and second, to REMIC II Regular Interest C-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(vii) with respect to the Class D Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest D-1; and second, to REMIC II Regular Interest D-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(viii) with respect to the Class E Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest E-1; and second, to REMIC II Regular Interest E-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(ix) with respect to the Class G Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest G-1; and second, to REMIC II Regular Interest G-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(x) with respect to the Class H Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest H-1; and second, to REMIC II Regular Interest H-2; in
each case, until their respective Certificate Balances are reduced to
zero; and
(xi) with respect to the Class K Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest K-1; and second, to REMIC II Regular Interest K-2; in
each case, until their respective Certificate Balances are reduced to
zero.
On each Distribution Date, all distributions made in respect of the
Class X-1 and Class X-2 Certificates on each Distribution Date pursuant to
Section 6.5 or Section 10.1, and allocable to any particular Component of each
such Class of Certificates in accordance with the last paragraph of Section
6.5(a), shall be deemed to have first been distributed from REMIC II to REMIC
III in respect of such Component's Corresponding REMIC II Regular Interest.
All distributions of reimbursements of Realized Losses made in
respect of any Class of Principal Balance Certificates (other than the Floating
Rate Certificates) and Floating Rate Regular Interests on each Distribution Date
pursuant to Section 6.5 shall be deemed to have first been distributed from
REMIC II to REMIC III in respect of its Corresponding REMIC II Regular Interest;
provided, however, that distributions of reimbursements of Realized Losses or
Expense Losses shall be made in reverse sequential order and priority as such
Realized Losses or Expense Losses were previously allocated to a particular
Component of such Class of Certificates. Any amounts remaining in the
Distribution Account with respect to REMIC II on any Distribution Date after the
foregoing distributions shall be distributed to the holders of the Class R-II
Certificates.
Section 6.4 [Reserved]
Section 6.5 REMIC III
(a) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account an amount equal to the Available Distribution Amount
and shall distribute such amount (other than the amount attributable to Excess
Liquidation Proceeds, which shall be distributed in accordance with Section
6.5(b), the amount attributable to Excess Interest, which shall be distributed
in accordance with Section 6.5(c), and an amount equal to any Net Swap Payment
that was deemed distributed in respect of the related Floating Rate Regular
Interest on the immediately preceding Master Servicer Remittance Date pursuant
to Section 8.31(b)) in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-1A
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class X-1 and Class X-2 Certificates, concurrently,
(A) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates and Class A-4 Certificates, the
Distributable Certificate Interest in respect of such Class for such
Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 1), pro
rata in proportion to the Distributable Certificate Interest payable
in respect of each such Class;
(B) to the Holders of the Class A-1A Certificates, the
Distributable Certificate Interest in respect of such Class for such
Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 2);
(C) to the Holders of the Class X-1 and Class X-2
Certificates, the Distributable Certificate Interest in respect of
each such Class for such Distribution Date, pro rata in proportion
to the Distributable Certificate Interest payable in respect of each
such Class;
provided, however, that if the portion of Available Distribution
Amount attributable to either Loan Group is insufficient to pay in
full the total amount of interest to be distributed with respect to
any of the Class A Senior Certificates and the Class X-1 and Class
X-2 Certificates on such Distribution Date as described above, the
Available Distribution Amount will be allocated among the Class A
Senior Certificates and the Class X-1 and Class X-2 Certificates,
pro rata in proportion to the respective amounts of interest payable
thereon for such Distribution Date, without regard to Loan Group;
(ii) (A) to the holders of the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates,
(1) first, to the Holders of the Class A-1 Certificates,
the Loan Group 1 Principal Distribution Amount for such
Distribution Date and, after the Certificate Balances of the
Class A-1A, Class A-MA and Class A-JA Certificates have been
reduced to zero, the Loan Group 2 Principal Distribution
Amount remaining after payments to the Class A-1A, Class A-MA
and Class A-JA Certificates have been made on the applicable
Distribution Date, until the Class A-1 Certificates are
reduced to zero;
(2) second, to the Holders of the Class A-2
Certificates, the Loan Group 1 Principal Distribution Amount
for such Distribution Date and, after the Certificate Balances
of the Class A-1A, Class A-MA and Class A-JA Certificates have
been reduced to zero, the Loan Group 2 Principal Distribution
Amount remaining after payments to the Class A-1A, Class A-MA,
Class A-JA and Class A-1 Certificates have been made on the
applicable Distribution Date, until the Class A-2 Certificates
are reduced to zero;
(3) third, to the Holders of the Class A-3 Certificates,
the Loan Group 1 Principal Distribution Amount for such
Distribution Date and, after the Certificate Balances of the
Class A-1A, Class A-MA and Class A-JA Certificates have been
reduced to zero, the Loan Group 2 Principal Distribution
Amount remaining after payments to the Class A-1A, Class A-MA,
Class A-JA, Class A-1 and Class A-2 Certificates have been
made on the applicable Distribution Date, until the Class A-3
Certificates are reduced to zero; and
(4) fourth, to the Holders of the Class A-4
Certificates, the Loan Group 1 Principal Distribution Amount
for such Distribution Date and, after the Certificate Balances
of the Class A-1A, Class A-MA and Class A-JA Certificates have
been reduced to zero, the Loan Group 2 Principal Distribution
Amount remaining after payments to the Class A-1A, Class A-MA,
Class A-JA, Class A-1, Class A-2 and Class A-3 Certificates
have been made on the applicable Distribution Date, until the
Class A-4 Certificates are reduced to zero;
(B) to the Holders of the Class A-1A Certificates, the Loan
Group 2 Principal Distribution Amount for such Distribution Date
and, after the Certificate Balances of the Class A-4, Class A-M and
Class A-J Certificates and the Class A-MFL and Class A-JFL Regular
Interests have been reduced to zero, the Loan Group 1 Principal
Distribution Amount for such Distribution Date remaining after
payments to the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-M and Class A-J Certificates and the Class A-MFL and Class A-JFL
Regular Interests have been made on the applicable Distribution
Date, until the Certificate Balance of the Class A-1A Certificates
has been reduced to zero;
(iii) to the Holders of the Class A Senior Certificates and the
Class X-1 and Class X-2 Certificates, pro rata (treating principal and
interest losses separately) in proportion to their respective entitlements
to reimbursement described in this clause, to reimburse any Realized
Losses or Expense Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through
Rate on such Realized Losses or Expense Losses;
(iv) to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, concurrently;
(A) to the Holders of the Class A-M Certificates and the Class
A-MFL Regular Interest, the Distributable Certificate Interest in
respect of each such Class for such Distribution Date (which shall
be payable from amounts in the Available Distribution Amount
attributable to Loan Group 1), pro rata in proportion to the
Distributable Certificate Interest payable in respect of each such
Class; and
(B) to the Holders of the Class A-MA Certificates, the
Distributable Certificate Interest in respect of such Class for such
Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 2);
provided, however, that if the portion of Available Distribution
Amount attributable to either Loan Group is insufficient to pay in
full the total amount of interest to be distributed with respect to
any of the Class A-M Certificates, Class A-MA Certificates or the
Class A-MFL Regular Interest on such Distribution Date as described
above, the Available Distribution Amount will be allocated between
the Class A-M Certificates, the Class A-MA Certificates and the
Class A-MFL Regular Interest, pro rata in proportion to the
respective amounts of interest payable thereon for such Distribution
Date, without regard to Loan Group;
(v) to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, concurrently;
(A) to the Holders of the Class A-M Certificates and the Class
A-MFL Regular Interest, pro rata, the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the
Certificate Balances of the Class A-1A, Class A-MA and Class A-JA
Certificates have been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Class A-1A,
Class A-MA and Class A-JA Certificates, and the Class A-1, Class
A-2, Class A-3 and Class A-4 Certificates have been made on the
applicable Distribution Date, until the Class A-M Certificates and
the Class A-MFL Regular Interest are reduced to zero; and
(B) to the Holders of the Class A-MA Certificates, the Loan
Group 2 Principal Distribution Amount for such Distribution Date
and, after the Certificate Balances of the Class A-4, Class A-M and
Class A-J Certificates and the Class A-MFL and Class A-JFL Regular
Interests have been reduced to zero, the Loan Group 1 Principal
Distribution Amount for such Distribution Date remaining after
payments to the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-M and Class A-J Certificates, the Class A-MFL and Class A-JFL
Regular Interests, and the Class A-1A Certificates have been made on
the applicable Distribution Date, until the Certificate Balance of
the Class A-MA Certificates has been reduced to zero;
(vi) to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, to reimburse
any Realized Losses or Expense Losses previously allocated to each such
Class and not previously fully reimbursed, plus one month's interest at
the applicable Pass-Through Rate on such Realized Losses or Expense
Losses;
(vii) to the Holders of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest, concurrently;
(A) to the Holders of the Class A-J Certificates and the Class
A-JFL Regular Interest, the Distributable Certificate Interest in
respect of each such Class for such Distribution Date (which shall
be payable from amounts in the Available Distribution Amount
attributable to Loan Group 1), pro rata in proportion to the
Distributable Certificate Interest payable in respect of each such
Class; and
(B) to the Holders of the Class A-JA Certificates, the
Distributable Certificate Interest in respect of such Class for such
Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 2);
provided, however, that if the portion of Available Distribution
Amount attributable to either Loan Group is insufficient to pay in
full the total amount of interest to be distributed with respect to
any of the Class A-J Certificates, the Class A-JA Certificates or
the Class A-JFL Regular Interest on such Distribution Date as
described above, the Available Distribution Amount will be allocated
between the Class A-J Certificates, the Class A-JA Certificates and
the Class A-JFL Regular Interest, pro rata in proportion to the
respective amounts of interest payable thereon for such Distribution
Date, without regard to Loan Group;
(viii) to the Holders of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest, concurrently;
(A) to the Holders of the Class A-J Certificates and the Class
A-JFL Regular Interest, pro rata, the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the
Certificate Balances of the Class A-1A, Class A-MA and Class A-JA
Certificates have been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Class A-1A,
Class A-MA and Class A-JA Certificates, and the Class A-1, Class
A-2, Class A-3, Class A-4 and Class A-M Certificates and the Class
A-MFL Regular Interest have been made on the applicable Distribution
Date, until the Class A-J Certificates and the Class A-JFL Regular
Interest are reduced to zero; and
(B) to the Holders of the Class A-JA Certificates, the Loan
Group 2 Principal Distribution Amount for such Distribution Date
and, after the Certificate Balances of the Class A-4, Class A-M and
Class A-J Certificates and the Class A-MFL and Class A-JFL Regular
Interests have been reduced to zero, the Loan Group 1 Principal
Distribution Amount for such Distribution Date remaining after
payments to the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-M and Class A-J Certificates, the Class A-MFL and Class A-JFL
Regular Interests, and the Class A-1A and Class A-MA Certificates
have been made on the applicable Distribution Date, until the
Certificate Balance of the Class A-JA Certificates has been reduced
to zero;
(ix) to the Holders of the Class A-J Certificates, Class A-JA
Certificates and Class A-JFL Regular Interest, pro rata, to reimburse any
Realized Losses or Expense Losses previously allocated to each such Class
and not previously fully reimbursed, plus one month's interest at the
applicable Pass-Through Rate on such Realized Losses or Expense Losses;
(x) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) upon payment in full of the Certificate Balance of the Class
A-J Certificates, the Class A-JA Certificates and the Class A-JFL Regular
Interest, to the Holders of the Class B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates and the Class A-MFL and
Class A-JFL Regular Interests hereunder), until the Certificate Balance of
the Class B Certificates has been reduced to zero;
(xii) to the Holders of the Class B Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xiii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(xiv) upon payment in full of the Certificate Balance of the Class B
Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B Certificates hereunder),
until the Certificate Balance of the Class C Certificates has been reduced
to zero;
(xv) to the Holders of the Class C Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xvi) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xvii) upon payment in full of the Certificate Balance of the Class
C Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B and Class C Certificates
hereunder), until the Certificate Balance of the Class D Certificates has
been reduced to zero;
(xviii) to the Holders of the Class D Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xix) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xx) upon payment in full of the Certificate Balance of the Class D
Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C and Class D
Certificates hereunder), until the Certificate Balance of the Class E
Certificates has been reduced to zero;
(xxi) to the Holders of the Class E Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxii) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiii) upon payment in full of the Certificate Balance of the Class
E Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D and Class
E Certificates hereunder), until the Certificate Balance of the Class F
Certificates has been reduced to zero;
(xxiv) to the Holders of the Class F Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxv) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvi) upon payment in full of the Certificate Balance of the Class
F Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E
and Class F Certificates hereunder), until the Certificate Balance of the
Class G Certificates has been reduced to zero;
(xxvii) to the Holders of the Class G Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxviii) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxix) upon payment in full of the Certificate Balance of the Class
G Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F and Class G Certificates hereunder), until the Certificate Balance
of the Class H Certificates has been reduced to zero;
(xxx) to the Holders of the Class H Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxi) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxii) upon payment in full of the Certificate Balance of the Class
H Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates hereunder), until the
Certificate Balance of the Class J Certificates has been reduced to zero;
(xxxiii) to the Holders of the Class J Certificates, to reimburse
any Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxiv) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxv) upon payment in full of the Certificate Balance of the Class
J Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J Certificates hereunder), until the
Certificate Balance of the Class K Certificates has been reduced to zero;
(xxxvi) to the Holders of the Class K Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxvii) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxviii) upon payment in full of the Certificate Balance of the
Class K Certificates, to the Holders of the Class L Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class A Senior Certificates, the Class
A-M, Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL
and Class A-JFL Regular Interests, and the Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates
hereunder), until the Certificate Balance of the Class L Certificates has
been reduced to zero;
(xxxix) to the Holders of the Class L Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xl) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distribution Date;
(xli) upon payment in full of the Certificate Balance of the Class L
Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K and Class L Certificates
hereunder), until the Certificate Balance of the Class M Certificates has
been reduced to zero;
(xlii) to the Holders of the Class M Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xliii) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
(xliv) upon payment in full of the Certificate Balance of the Class
M Certificates, to the Holders of the Class N Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L and Class M
Certificates hereunder), until the Certificate Balance of the Class N
Certificates has been reduced to zero;
(xlv) to the Holders of the Class N Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xlvi) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlvii) upon payment in full of the Certificate Balance of the Class
N Certificates, to the Holders of the Class O Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates hereunder), until the Certificate Balance of the Class O
Certificates has been reduced to zero;
(xlviii) to the Holders of the Class O Certificates, to reimburse
any Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xlix) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date;
(l) upon payment in full of the Certificate Balance of the Class O
Certificates, to the Holders of the Class P Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and
Class O Certificates hereunder), until the Certificate Balance of the
Class P Certificates has been reduced to zero;
(li) to the Holders of the Class P Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(lii) to the Holders of the Class Q Certificates, Distributable
Certificate Interest for such Distribution Date;
(liii) upon payment in full of the Certificate Balance of the Class
P Certificates, to the Holders of the Class Q Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the 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 and Class P Certificates hereunder), until the Certificate Balance
of the Class Q Certificates has been reduced to zero;
(liv) to the Holders of the Class Q Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(lv) to the Holders of the Class S Certificates, Distributable
Certificate Interest for such Distribution Date;
(lvi) upon payment in full of the Certificate Balance of the Class Q
Certificates, to the Holders of the Class S Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the 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 and Class Q Certificates hereunder), until the
Certificate Balance of the Class S Certificates has been reduced to zero;
(lvii) to the Holders of the Class S Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses; and
(lviii) to the Holders of the Class R-III Certificates at such time
as the Certificate Balances of all Classes of REMIC Regular Certificates
and the Floating Rate Regular Interests have been reduced to zero, and
Realized Losses or Expense Losses previously allocated to each Holder have
been reimbursed to the Holders of the REMIC Regular Certificates and the
Floating Rate Regular Interests, any amounts remaining on deposit in the
Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Certificate Balances of
all the Classes of Subordinate Certificates (other than the Class A-MFL and
Class A-JFL Certificates) and the Class A-MFL and Class A-JFL Regular Interests
have been reduced to zero or the aggregate Appraisal Reduction in effect is
greater than or equal to Certificate Balances of all the Classes of Subordinate
Certificates (other than the Class A-MFL and Class A-JFL Certificates) and the
Class A-MFL and Class A-JFL Regular Interests, the Principal Distribution Amount
will be distributed,
o first, to the Holders of the Class A-1, Class A-1A, Class A-2, Class
A-3 and Class A-4 Certificates, pro rata, based on their respective
Certificate Balances, without regard to Loan Group, in reduction of
their respective Certificate Balances, until the Certificate Balance
of each such Class is reduced to zero; and
o second, to the Holders of the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates, pro rata, based on the
respective amounts of unreimbursed Realized Losses or Expense Losses
previously allocated to each such Class, plus one month's interest
on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Certificate Balances of
the Class A-J Certificates, the Class A-JA Certificates and the Class A-JFL
Regular Interest, and the Class B through Class S Certificates have been reduced
to zero or the aggregate Appraisal Reduction in effect is greater than or equal
to Certificate Balances of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest and the Class B through Class
S Certificates, the Principal Distribution Amount will be distributed,
o first, to the Holders of the Class A-1, Class A-1A, Class A-2, Class
A-3 and Class A-4 Certificates, pro rata, based on their respective
Certificate Balances, without regard to Loan Group, in reduction of
their respective Certificate Balances, until the Certificate Balance
of each such Class is reduced to zero;
o second, to the Holders of the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates, pro rata, based on the
respective amounts of unreimbursed Realized Losses or Expense Losses
previously allocated to each such Class, plus one month's interest
on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group.
o third, to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, based
on their respective Certificate Balances, without regard to Loan
Group, in reduction of their respective Certificate Balances, until
the Certificate Balance of each such Class is reduced to zero; and
o fourth, to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, based
on the respective amounts of unreimbursed Realized Losses or Expense
Losses previously allocated to each such Class, plus one month's
interest on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Certificate Balances of
the Class B through Class S Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to Certificate
Balances of the Class B through Class S Certificates, the Principal Distribution
Amount will be distributed,
o first, to the Holders of the Class A-1, Class A-1A, Class A-2, Class
A-3 and Class A-4 Certificates, pro rata, based on their respective
Certificate Balances, without regard to Loan Group, in reduction of
their respective Certificate Balances, until the Certificate Balance
of each such Class is reduced to zero;
o second, to the Holders of the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates, pro rata, based on the
respective amounts of unreimbursed Realized Losses or Expense Losses
previously allocated to each such Class, plus one month's interest
on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group;
o third, to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, based
on their respective Certificate Balances, without regard to Loan
Group, in reduction of their respective Certificate Balances, until
the Certificate Balance of each such Class is reduced to zero;
o fourth, to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, based
on the respective amounts of unreimbursed Realized Losses or Expense
Losses previously allocated to each such Class, plus one month's
interest on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group;
o fifth, to the Holders of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest, pro rata, based
on their respective Certificate Balances, without regard to Loan
Group, in reduction of their respective Certificate Balances, until
the Certificate Balance of each such Class is reduced to zero; and
o sixth, to the Holders of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest, pro rata, based
on the respective amounts of unreimbursed Realized Losses or Expense
Losses previously allocated to each such Class, plus one month's
interest on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group.
Such distribution of the Principal Distribution Amount to the Holders of the
Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MA,
Class A-J and Class A-JA Certificates, respectively, shall be deemed to be made
to REMIC II Regular Interests A-1-1 and A-1-2, REMIC II Regular Interests
X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0 and A-1A-9, REMIC
II Regular Interests A-2-1 and A-2-2, REMIC II Regular Interests A-3-1 and
A-3-2, REMIC II Regular Interests X-0-0, X-0-0, X-0-0, X-0-0, X-0-0 and A-4-6,
REMIC II Regular Interest A-M, REMIC II Regular Interest A-MFL, REMIC II Regular
Interest A-MA, REMIC II Regular Interest A-J, REMIC II Regular Interest A-JFL
and REMIC II Regular Interest A-JA, as applicable, in the same order and
priority as the distributions described in Section 6.3(a).
(b) On each Distribution Date, following the above-described
distributions on the Principal Balance Certificates (other than the Floating
Rate Certificates), the Floating Rate Regular Interests and the Class X-1
Certificates and Class X-2 Certificates, the Paying Agent shall withdraw amounts
in the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
(i) first, from amounts in the Reserve Account with respect to all
Mortgage Loans, to reimburse the Holders of the Class A Senior
Certificates and the Class X-1 and Class X-2 Certificates, pro rata
(treating principal and interest losses separately), and then the
remaining amounts to reimburse the Subordinate Certificates (other than
the Class A-MFL and Class A-JFL Certificates) and the Class A-MFL and
Class A-JFL Regular Interests (in order of alphabetical Class designation,
but as between the Class A-M Certificates, the Class A-MA Certificates and
the Class A-MFL Regular Interest, on the one hand, and the Class A-J
Certificates, the Class A-JA Certificates and the Class A-JFL Regular
Interest, on the other hand, in that order) for any, and to the extent of,
Realized Losses or Expense Losses previously allocated to them and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses; and
(ii) second, upon the reduction of the Aggregate Certificate Balance
of the Principal Balance Certificates (other than the Class A-MFL and
Class A-JFL Certificates) and the Class A-MFL and Class A-JFL Regular
Interests to zero, to pay any amounts remaining on deposit in such account
to the Holders of the R-I Certificates.
Amounts reimbursed pursuant to Section 6.5(b)(i) shall be deemed to
be applied to reimbursement of Realized Losses or Expense Losses previously
allocated to the REMIC II Regular Interests in the reverse sequential order and
priority as such Realized Losses or Expense Losses were applied thereto, and to
the REMIC I Regular Interests, pro rata, as to those REMIC I Regular Interests
that incurred a Realized Loss or Expense Loss. Any amounts remaining in the
Reserve Account after the Aggregate Certificate Balance of all Certificates and
Interests have been reduced to zero shall be distributed to the Class R-I
Certificates.
(c) On each Distribution Date, the Paying Agent shall withdraw from
the Excess Interest Sub-account any Excess Interest on deposit therein, and the
Paying Agent shall distribute such Excess Interest on such Distribution Date to
the Class EI Certificates.
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized during
the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interests; and to the extent that such
Realized Interest Loss exceeds such amount, shall be treated as an Expense
Loss; and
(iii) Expense Losses (not otherwise applied above) applicable to the
Mortgage Loans and realized during the related Collection Period shall be
allocated among the REMIC I Regular Interests in proportion to their
Certificate Balances after making all other allocations for such
Distribution Date.
(b) In the event that a Master Servicer, a Special Servicer or the
Trustee determines that an Advance previously made by it (whether such Advance
(together with Advance Interest thereon) was in respect of principal or interest
on the related Mortgage Loan or a Servicing Advance) is a Nonrecoverable Advance
and such Master Servicer withdraws the amount of such Advance from the
applicable Certificate Account pursuant to Section 5.2(a) hereof (which amount
shall be treated as an Available Advance Reimbursement Amount pursuant to
Section 4.6 or if the Master Servicer determines any Unliquidated Advance has
become a Nonrecoverable Advance), the applicable Master Servicer (after
consultation with the applicable Special Servicer) shall compute the Realized
Loss with respect to such Mortgage Loan (and the Trustee shall allocate the
Realized Loss) as follows:
(i) the amount withdrawn from the Certificate Account shall be
treated as Realized Principal Losses up to the amount of the aggregate
amount in the Certificate Account allocable to principal for such
Collection Period contemplated by clause (I)(A) of the definition of
Principal Distribution Amount, and shall be allocated to the Corresponding
REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and to the
extent that any Realized Principal Loss exceeds the Certificate Balance of
the Corresponding REMIC I Regular Interest, such Realized Principal Loss
shall be allocated to the other REMIC I Regular Interests in accordance
with Section 6.6(a)(iii)), and such withdrawal shall reduce the principal
paid on each such REMIC I Regular Interest, on which principal would
otherwise be paid on such Distribution Date, in proportion to such
principal payments; and
(ii) if the amount that the applicable Master Servicer withdraws
from the Certificate Account as referenced in clause (b)(i) above exceeds
such amounts allocable to principal for such Collection Period, then such
additional amounts shall constitute Unpaid Interest, and shall be
allocated to the REMIC I Regular Interests on a pro rata basis based upon
the amount of accrued and unpaid interest thereon.
(c) At such time as a Final Recovery Determination is made with
respect to any Mortgage Loan with respect to which the applicable Master
Servicer previously had withdrawn amounts from the applicable Certificate
Account following a determination that Advances previously made were
Nonrecoverable Advances and Realized Losses were computed and allocated pursuant
to clauses (a) and (b) above, and amounts are recovered:
(i) the portion of the amount of collections recovered on a Mortgage
Loan that is identified and applied by the applicable Master Servicer as
recoveries of principal shall be applied first, to make payments of
principal on the Corresponding REMIC I Regular Interest up to an amount
equal to the Realized Principal Losses previously allocated thereto as a
result of the reimbursement of Nonrecoverable Advances or Advance Interest
(and the Principal Balance of the Mortgage Loan and the related
Certificate Balance of the Corresponding REMIC I Regular Interest shall be
correspondingly increased), and thereafter to make payments of principal
to the REMIC I Regular Interests with respect to which principal
distributions were reduced pursuant to Section 6.6(b)(i) above, in
proportion to the amount of such reductions; and
(ii) the portion of the amount recovered on the Mortgage Loan that
is identified and applied by the applicable Master Servicer as recoveries
of interest shall be applied to make payments of Unpaid Interest on the
REMIC I Regular Interests, with respect to which Unpaid Interest was
allocated pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC I Regular Interests for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC II Regular Interests in the amounts and in the manner as
will be allocated to the Corresponding Certificates relating thereto pursuant to
Section 6.6(f); provided, however, that Realized Losses and Expense Losses
allocated to REMIC II Regular Interests shall be allocated among the
Corresponding Components sequentially in alphabetical and numerical order, but
as between the Class A-M Certificates, the Class A-MA Certificates and the Class
A-MFL Regular Interest, on the one hand, and the Class A-J Certificates, the
Class A-JA Certificates and the Class A-JFL Regular Interest, on the other hand,
in that order). Realized Interest Losses allocated to the Class X-1 and Class
X-2 Certificates shall reduce the amount of interest payable on each REMIC II
Regular Interest, which reduction shall be allocated pro rata based on the
product of the Certificate Balance of such REMIC II Regular Interest and the sum
of the Class X-1 Strip Rate and the Class X-2 Strip Rate (if any) applicable to
the Class of Certificates relating to such REMIC II Regular Interest.
(e) [Reserved]
(f) REMIC III. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC II Regular Interests for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC Regular Certificates and the Floating Rate Regular
Interests in Reverse Sequential Order, with such reductions being allocated (A)
among the Class A-1, Class A-1A, Class A-2, Class A-3 and Class A-4 Certificates
and, in the case of interest, the Class X-1 and Class X-2 Certificates, pro rata
(treating principal and interest losses separately), (B) among the Class A-M
Certificates, the Class A-MA Certificates and the Class A-MFL Regular Interest,
pro rata, and (C) among the Class A-J Certificates, the Class A-JA Certificates
and the Class A-JFL Regular Interest, pro rata, in each case of clauses (A), (B)
and (C), reducing (x) the Certificate Balance of such Class (excluding the Class
X Certificates) until such Certificate Balance is reduced to zero; (y) Unpaid
Interest owing to such Class to the extent thereof; and (z) Distributable
Certificate Interest owing to such Class, provided that Realized Losses and
Expense Losses shall not reduce the Aggregate Certificate Balance of the REMIC
Regular Certificates and the Floating Rate Regular Interests below the sum of
the Aggregate Certificate Balances of the REMIC II Regular Interests.
Section 6.7 Net Aggregate Prepayment Interest Shortfalls
On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls in the Mortgage Loans in REMIC I shall be allocated among the REMIC I
Regular Interests, pro rata in proportion to the Accrued Certificate Interest
for each such REMIC I Regular Interest for such Distribution Date and shall
reduce Distributable Certificate Interest for each such Interest. On each
Distribution Date, any such Net Aggregate Prepayment Interest Shortfalls in the
REMIC I Regular Interests held by REMIC II shall be allocated among the REMIC II
Regular Interests, pro rata in proportion to the Accrued Certificate Interest
for each such REMIC II Regular Interest for such Distribution Date and shall
reduce Distributable Certificate Interest for each such Interest. On each
Distribution Date, the amount of any such Net Aggregate Prepayment Interest
Shortfalls on the REMIC Regular Certificates and the Floating Rate Regular
Interests shall be allocated to each such Class, pro rata, in proportion to the
amount of Accrued Certificate Interest payable to such Class on such
Distribution Date, in each case reducing interest otherwise payable thereon. The
amount of Net Aggregate Prepayment Interest Shortfalls allocated to a Class of
REMIC Regular Certificates and the Floating Rate Regular Interests pursuant to
the preceding sentence shall reduce the Distributable Certificate Interest for
such Class for such Distribution Date.
Section 6.8 Adjustment of Servicing Fees
The Master Servicing Fee payable to each Master Servicer shall be
adjusted as provided in Section 8.10(c) herein. Any amount retained by REMIC I
as a result of a reduction of the Master Servicing Fee shall be treated as
interest collected with respect to the prepaid Mortgage Loans with respect to
which the Master Servicing Fee adjustment occurs.
Section 6.9 Appraisal Reductions
Not later than the date on which an Appraisal Event occurs, the
applicable Special Servicer shall have obtained (A) an Appraisal of the
Mortgaged Property securing the related Mortgage Loan (or Serviced Loan Group)
if the Principal Balance of such Mortgage Loan (or Serviced Loan Group) exceeds
$2,000,000 or (B) at the option of such Special Servicer, if such Principal
Balance is less than or equal to $2,000,000, either an internal valuation
prepared by such Special Servicer in accordance with MAI standards (which
internal valuation shall ascribe a value for any residential cooperative
property based on the value of such property as if operated as a residential
cooperative) or an Appraisal which in all cases shall be completed as of the
date that such Mortgage Loan (or Serviced Loan Group) becomes a Required
Appraisal Loan; provided that if the applicable Special Servicer had completed
or obtained an Appraisal or internal valuation within the immediately prior 12
months, such Special Servicer may rely on such Appraisal or internal valuation
and shall have no duty to prepare a new Appraisal or internal valuation, unless
such reliance would not be in accordance with the Servicing Standard; provided,
further, that if the applicable Special Servicer is required to obtain an
Appraisal of a Mortgaged Property or prepare an internal valuation after receipt
of the notice described in clause (ii) of the definition of Appraisal Event,
such Appraisal or internal valuation will be obtained or prepared, as the case
may be, no later than 60 days after receipt of such notice. With respect to each
Mortgage Loan that is cross-collateralized with any other Mortgage Loan, the
Appraisal or internal valuation need only be performed with respect to Mortgaged
Properties that constitute the principal security for the individual Mortgage
Loan to which an Appraisal Event occurs, and not with respect to all of the
Mortgaged Properties that constitute security for the individual Mortgage Loan
in the cross-collateralized group. Such Appraisal or valuation shall be
conducted in accordance with the definition of "market value" as set forth in 12
C.F.R. ss. 225.62 and shall be updated at least annually from the date of such
Appraisal or valuation, as applicable, to the extent such Mortgage Loan remains
a Required Appraisal Loan. The cost of any such Appraisal or valuation, if not
performed by the applicable Special Servicer, shall be an expense of the Trust
and may be paid from REO Income or, to the extent collections from such related
Mortgage Loan (or Serviced Loan Group) or Mortgaged Property does not cover the
expense, such unpaid expense shall be, subject to Section 4.4 hereof, advanced
by the applicable Master Servicer at the request of the applicable Special
Servicer pursuant to Section 4.6 in which event it shall be treated as a
Servicing Advance. The applicable Special Servicer shall calculate any Appraisal
Reduction. The applicable Master Servicer shall recalculate the Appraisal
Reduction for any Mortgage Loan and Serviced Loan Group based on the original
Appraisal or updated Appraisals or internal valuations provided from time to
time to it by the applicable Special Servicer and report such amount to the
Trustee. The applicable Special Servicer shall provide notice of any Appraisal
Event with respect to a Mortgage Loan to the applicable Master Servicer and the
Operating Adviser on the day of determination of such Appraisal Event.
Section 6.10 Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement to the
contrary, the Paying Agent shall comply with all federal withholding
requirements with respect to the Swap Transactions and payments to
Certificateholders of interest, original issue discount, or other amounts that
the Paying Agent reasonably believes are applicable under the Code, giving
effect to all applicable exemptions from withholding as to which the recipient
has furnished the applicable and effective certification or other documentation.
The consent of Certificateholders shall not be required for any such withholding
and any amount so withheld shall be regarded as distributed to the related
Certificateholders for purposes of this Agreement. In the event the Paying Agent
withholds any amount from payments made to any Certificateholder pursuant to
federal withholding requirements, the Paying Agent shall indicate to such
Certificateholder the amount withheld.
The Paying Agent on behalf of the Trust will deliver or cause to be
delivered the federal taxpayer identification number of each Grantor Trust that
holds a Swap Transaction on an IRS Form W-9 to the Swap Counterparty as soon as
possible after each Swap Transaction is entered into (but no later than the
first payment date under the Swap Transaction), provided that the Paying Agent
has received the applicable taxpayer identification number from the IRS by such
date (and the Paying Agent shall use its best efforts to obtain such taxpayer
identification number from the IRS by such date) and, if requested by the Swap
Counterparty (unless not permitted under federal income tax law) an IRS Form
W-8IMY, (ii) each non-exempt holder of a Floating Rate Certificate will be
obligated pursuant to this Agreement to provide applicable certification to the
Paying Agent (with copies directly from such Certificateholder to the Swap
Counterparty) to enable the Paying Agent to make payments to the Floating Rate
Certificateholders without federal withholding or backup withholding, and (iii)
as authorized by the Floating Rate Certificateholders under this Agreement, the
Paying Agent may forward any such certification received to the Swap
Counterparty if requested.
Section 6.11 Prepayment Premiums and Yield Maintenance Charges
On any Distribution Date prior to and including the Distribution
Date on which the Certificate Balance of the Class A Senior Certificates has
been reduced to zero, Prepayment Premiums or Yield Maintenance Charges collected
with respect to a Mortgage Loan in a particular Loan Group during any particular
Collection Period will be distributed by the Paying Agent on the Classes of
Certificates as follows: the Paying Agent shall be deemed to distribute to the
Trustee, as holder of the REMIC II Regular Interests, any Prepayment Premiums or
Yield Maintenance Charges deemed distributed to the REMIC I Regular Interests,
and shall be deemed to distribute such Prepayment Premiums or Yield Maintenance
Charges to the REMIC II Regular Interest then entitled to distributions of
principal from the Principal Distribution Amount (or, if more than one Class of
REMIC II Regular Interests is then entitled to distributions of principal from
the Principal Distribution Amount, such Prepayment Premiums or Yield Maintenance
Charges shall be deemed distributed among such Classes pro rata in accordance
with the relevant amounts of entitlements to distributions of principal).
Following such deemed distributions, in respect of Prepayment
Premium or Yield Maintenance Charges on each Mortgage Loan in Loan Group 1, the
Holders of the respective Classes of Principal Balance Certificates (other than
the Class A-1A, Class A-MA, Class A-JA, Class L, Class M, Class N, Class O,
Class P, Class Q and Class S Certificates and the Floating Rate Certificates)
and the Floating Rate Regular Interests then entitled to distributions of
principal from the Principal Distribution Amount for such Distribution Date,
will be entitled to, and the Paying Agent on behalf of the Trustee will pay to
such Holder(s), an amount equal to, in the case of each such Class, the product
of (a) a fraction, which in no event may be greater than 1.0 or less than 0.0,
the numerator of which is the amount distributed as principal to the Holders of
that Class on that Distribution Date, and the denominator of which is the total
amount distributed as principal to the Holders of all Classes of Principal
Balance Certificates, except the Class A-1A, Class A-MA and Class A-JA
Certificates and the Floating Rate Certificates, and the Floating Rate Regular
Interests, on that Distribution Date, (b) the Base Interest Fraction for the
related Principal Prepayment and that Class of Certificates (or Floating Rate
Regular Interests, as applicable) and (c) the amount of Prepayment Premiums or
Yield Maintenance Charges collected in respect of such Principal Prepayment
during the related Collection Period. Following the deemed distributions set
forth in the first paragraph of this Section 6.11, Prepayment Premiums or Yield
Maintenance Charges collected in respect of each Mortgage Loan included in Loan
Group 2 during the related Collection Period will be distributed by the Paying
Agent as follows: to the Holders of the Class A-1A, Class A-MA and Class A-JA
Certificates then entitled to distributions of principal on such Distribution
Date, an amount equal to the product of (a) a fraction, which in no event may be
greater than 1.0 or less than 0.0, the numerator of which is the amount
distributed as principal to the Holders of that Class on that Distribution Date,
and the denominator of which is the total amount distributed as principal to the
Holders of the Class A-1A, Class A-MA and Class A-JA Certificates, (b) the Base
Interest Fraction for the related Principal Prepayment and that Class and (c)
the amount of the Prepayment Premium or Yield Maintenance Charge collected in
respect of such Principal Prepayment during the related Collection Period.
If there is more than one such Class of Principal Balance
Certificates or Floating Rate Regular Interests entitled to distributions of
principal on such Distribution Date, the aggregate amount described in the
preceding sentence will be allocated among such Classes on a pro rata basis in
accordance with the relative amounts of entitlement to such distributions of
principal. Any portion of such Prepayment Premium or Yield Maintenance Charge
that is not so distributed to the Holders of such Principal Balance Certificates
(other than the Floating Rate Certificates) or Floating Rate Regular Interests
will be distributed to the Holders of the Class X-1 and Class X-2 Certificates.
On or prior to the Distribution Date in November 2012, 73% of the Prepayment
Premium or Yield Maintenance Charge that is not so distributed to the Holders of
such Principal Balance Certificates (other than the Floating Rate Certificates)
or Floating Rate Regular Interests will be distributed to the Holders of the
Class X-1 Certificates and 27% of the Prepayment Premium or Yield Maintenance
Charge that is not so distributed to the Holders of such Principal Balance
Certificates (other than the Floating Rate Certificates) or Floating Rate
Regular Interests will be distributed to the Holders of the Class X-2
Certificates. After the Distribution Date in November 2012, any portion of such
Prepayment Premium or Yield Maintenance Charge collected during the related
Collection Period that is not so distributed to the Holders of such Principal
Balance Certificates (other than the Floating Rate Certificates) or Floating
Rate Regular Interests will be distributed to the Holders of the Class X-1
Certificates.
Section 6.12 Other Distributions
(a) On each Master Servicer Remittance Date, the Paying Agent shall
be deemed to distribute to the Capmark Master Servicer, for deposit in the
Master Servicer's Floating Rate Accounts with respect to the related Net Swap
Payment, that amount specified by the Paying Agent pursuant to Section 8.31(b).
In accordance with Section 8.31, the Capmark Master Servicer shall offset and
retain such amount from the payment it delivers to the Paying Agent on the
Master Servicer Remittance Date pursuant to Section 5.2(a)(xi) and shall deposit
such amount, on behalf of the Trustee, in the related Master Servicer's Floating
Rate Account, and such payment shall be deemed to have been made by the Paying
Agent as a payment of a portion of the interest and Prepayment Premiums, as
applicable, on the related Floating Rate Regular Interest and the Corresponding
REMIC I Regular Interest, and Corresponding REMIC II Regular Interest. On each
Distribution Date, the Paying Agent (or the Capmark Master Servicer on the
Paying Agent's behalf) shall distribute the Floating Rate Available Funds for
such Distribution Date to the Holders of record of the related Class of Floating
Rate Certificates as of the related Record Date in the following amounts: (i)
the related Floating Rate Interest Distribution Amount, (ii) the related
Floating Rate Principal Distribution Amount and (iii) only if the related Swap
Transaction has been terminated and no replacement swap transaction has been
entered into, any Prepayment Premiums that were allocated to the related
Floating Rate Regular Interest. No Holder of a Floating Rate Certificate shall
be entitled to receive any portion of any Prepayment Premium paid on the related
Class of Floating Rate Regular Interests, unless the related Swap Transaction
has been terminated and no replacement swap transaction has been entered into.
Such amount shall be payable to the Swap Counterparty pursuant to the terms of
the related Swap Transaction. Following a Swap Default under the related Swap
Transaction or other default or event of termination of the related Swap
Transaction, and during the period when the Paying Agent is pursuing remedies
under the related Swap Transaction, the related Floating Rate Interest
Distribution Amount for the related Class of Floating Rate Certificates shall
equal the Distributable Certificate Interest for the related Floating Rate
Regular Interest, until such time as the conditions giving rise to such Swap
Default or other default or event of termination have been cured or the related
Swap Transaction has been replaced. Any such Swap Default, other default or
event of termination, and the consequent change to a fixed Pass-Through Rate
shall not constitute a default under this Agreement. To the extent that the
Depository is not provided with sufficient notice of a change to a fixed
Pass-Through Rate, a Swap Default can result in a delay in the distribution of
amounts payable to the related Class of Floating Rate Certificates and such
delay shall not constitute a default by any party to this Agreement nor result
in the accrual of interest on such delayed payment and no party hereto shall be
obligated to advance such amounts. Notwithstanding the foregoing, to the extent
provided in the related Swap Transaction, the Swap Counterparty will remain
liable for the Swap Default or other default or event of termination pursuant to
the related Swap Transaction.
For as long as a Swap Default or other default or event of
termination has occurred and is continuing and the related Class of Floating
Rate Certificates is receiving interest at the fixed Pass-Through Rate, such
Class of Floating Rate Certificates shall accrue interest at the same rate, on
the same basis and in the same manner as the related Floating Rate Regular
Interest.
If any Swap Transaction becomes subject to early termination due to
the occurrence of a Rating Agency Trigger Event, a Swap Default, an event of
default or a termination event thereunder, the Paying Agent on behalf of the
Trustee shall promptly provide written notice to the Depository, the Holders of
the related Class of Floating Rate Certificates, and the Paying Agent shall take
such commercially reasonable actions (following the expiration of any applicable
grace period), unless otherwise directed in writing by the holders of 100% of
the related Class of Floating Rate Certificates (and only to the extent that,
and only for so long as, doing so does not lead the Paying Agent to incur
expenses in excess of the amounts available (or, in the Paying Agent's sole
discretion, reasonably anticipated to be available) to it from such holders for
reimbursement), to enforce the rights of the Trust under such Swap Transaction
as may be permitted by the terms of such Swap Transaction and consistent with
the terms hereof, and shall apply the proceeds collected from the Swap
Counterparty in connection with any such actions (including, without limitation,
the proceeds of the liquidation of any collateral pledged by the Swap
Counterparty) to enter into a replacement interest rate swap transaction on
substantially identical terms or on such other terms acceptable to the Rating
Agencies. The Paying Agent shall be permitted (subject to the final two
paragraphs of this Section 6.12) to retain and rely upon investment banking
firms of national reputation in connection with identifying and entering into
any replacement interest rate swap transactions, and the Paying Agent's reliance
on the advice of such investment banking firms shall provide 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 with such advice. Each
Rating Agency shall confirm in writing that the execution and delivery of any
proposed interest rate swap transaction will not result in a qualification,
downgrade or withdrawal of the then-current ratings of the Certificates. If the
costs attributable to entering into a replacement interest rate swap transaction
will exceed the sum of the net proceeds of the liquidation of the related Swap
Transaction, a replacement interest rate swap transaction shall not be entered
into. Prior to the application of any proceeds in accordance with the terms of
this paragraph, such proceeds shall be deposited in segregated trust accounts,
each of which shall be an Eligible Account, established by the Paying Agent and
identified as held in trust for the benefit of the Certificateholders of the
related Class of Floating Rate Certificates. Any proceeds of the liquidation of
the related Swap Transaction which exceed the costs attributable to entering
into a replacement interest rate swap transaction (or if no replacement interest
rate swap transaction is entered into) shall be deposited into the related
Floating Rate Account and shall be distributed to the holders of the related
Class of Floating Rate Certificates.
(b) The Trustee and the Paying Agent shall be entitled to
conclusively rely on the report from the Swap Counterparty that specifies LIBOR
for any Interest Accrual Period.
(c) As long as the related Swap Transaction (or any replacement
thereof) is in effect, each beneficial owner of the related Class of Floating
Rate Certificates, or any interest therein, shall be deemed to have represented
that either (i) it is not an employee benefit plan subject to Title I of ERISA,
a plan subject to Section 4975 of the Code, or a plan subject to any Similar
Laws or any person investing on behalf of or with plan assets of such employee
benefit plan or plan or (ii) the acquisition and holding of such Certificate are
eligible for the exemptive relief available under at least one of the
Investor-Based Exemptions.
(d) Notwithstanding anything herein to the contrary, any expenses
incurred by the Paying Agent under this Section 6.12 shall be paid solely by the
related Floating Rate Grantor Trust after the application of funds held in the
related Floating Rate Account in accordance with Section 5.3(c), but only upon
the Paying Agent's determination that such expenses cannot be recovered from the
Swap Counterparty or any proceeds due under the related Swap Transaction;
provided, that the Paying Agent shall only be permitted to incur any costs and
expenses which are in excess of any termination payment received from the Swap
Counterparty and not otherwise applied to offset the expense of entering into a
replacement swap transaction if it has received the written consent of 100% of
the holders of the related Class of Floating Rate Certificates, or has received
a Rating Agency Confirmation (with respect to the related Class of Floating Rate
Certificates) from each Rating Agency (the expense of such confirmation to be
paid by the holders of the related Class of Floating Rate Certificates). Factors
that the Paying Agent may consider when making a recoverability determination
with respect to the reimbursement of such expenses include, but are not limited
to, (i) the financial condition of the Swap Counterparty and (ii) the likelihood
that the Swap Counterparty will make such reimbursements in the event the Paying
Agent pursues appropriate legal action or other commercially reasonable
enforcement and collection measures.
The Paying Agent shall not be required to expend any amounts in
connection with enforcing the rights of the Trust under the Swap Transaction or
entering into a replacement interest rate swap transaction to the extent amounts
are not available (or, in the Paying Agent's sole discretion, reasonably
anticipated to be available) in the related Floating Rate Grantor Trust after
the application of funds held in the related Floating Rate Account in accordance
with Section 5.3(c).
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE, THE CERTIFICATE REGISTRAR,
AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent
(a) The Trustee and the Paying Agent each shall undertake to perform
only those duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Paying Agent. Any permissive right of the Trustee or the Paying Agent
provided for in this Agreement shall not be construed as a duty of the Trustee
or the Paying Agent. The Trustee shall exercise such of the rights and powers
vested in it by this Agreement and following the occurrence and during the
continuation of any Event of Default hereunder, the Trustee shall use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
(b) The Trustee or the Paying Agent, as applicable, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee or the Paying Agent, as the case
may be, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they on
their face conform to the requirements of this Agreement; provided that the
Trustee or the Paying Agent, as the case may be, shall not be responsible for
the accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Master Servicers or
any other Person to it pursuant to this Agreement. If any such instrument is
found on its face not to conform to the requirements of this Agreement, the
Trustee or the Paying Agent shall request the providing party to correct the
instrument and if not so corrected, the Trustee shall inform the
Certificateholders.
(c) None of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Persons shall have any liability to the Trust
or the Certificateholders arising out of or in connection with this Agreement,
except for their respective negligence or willful misconduct. No provision of
this Agreement shall be construed to relieve the Trustee, the Paying Agent or
any of their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Persons from
liability for their own negligent action, their own negligent failure to act or
their own willful misconduct or bad faith; provided that:
(i) none of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents or Controlling Persons shall be personally
liable with respect to any action taken, suffered or omitted to be taken
by it in its reasonable business judgment in accordance with this
Agreement or at the direction of Holders of Certificates evidencing not
less than a majority of the outstanding Certificate Balance of the
Certificates;
(ii) no provision of this Agreement shall require either the Trustee
or the Paying Agent 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;
(iii) none of the Trustee, the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
responsible for any act or omission of any Master Servicer, any Special
Servicer, the Depositor or any Seller, or for the acts or omissions of
each other, including, without limitation, in connection with actions
taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any forms
or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) neither the Trustee nor the Paying Agent shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or Paying Agent, as applicable, in
accordance with this Agreement. In such event, all legal expense and costs
of such action shall be expenses and costs of the Trust and the Trustee
and the Paying Agent shall be entitled to be reimbursed therefor from the
Certificate Account pursuant to Section 5.2(a)(vi); and
(vi) neither the Trustee nor the Paying Agent shall be charged with
knowledge of any failure by any Master Servicer, any Special Servicer or
the Swap Counterparty or by each other to comply with its obligations
under this Agreement or the Swap Transactions or any act, failure, or
breach of any Person upon the occurrence of which the Trustee or the
Paying Agent may be required to act, unless a Responsible Officer of the
Trustee or the Paying Agent, as the case may be, obtains actual knowledge
of such failure.
Section 7.2 Certain Matters Affecting the Trustee and the Paying
Agent
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee and the Paying Agent each may request, and may rely
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 believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee and the Paying Agent each may consult with counsel
and the advice of such counsel and 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
with such advice or Opinion of Counsel;
(iii) none of the Trustee, the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
personally liable for any action taken, suffered or omitted by such Person
in its reasonable business judgment and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this
Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or 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
(provided the same appears regular on its face), unless requested in
writing to do so by Holders of at least 25% of the Aggregate Certificate
Balance of the Certificates then outstanding, provided that, if the
payment within a reasonable time to the Trustee or the Paying Agent, as
applicable, of the costs, expenses or liabilities likely to be incurred by
it in connection with the foregoing is, in the opinion of such Person not
reasonably assured to such Person by the security afforded to it by the
terms of this Agreement, such Person may require reasonable indemnity
against such expense or liability or payment of such estimated expenses as
a condition to proceeding. The reasonable expenses of the Trustee or the
Paying Agent, as applicable, shall be paid by the Certificateholders
requesting such examination;
(v) the Trustee and the Paying Agent each may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, which agents or attorneys shall have
any or all of the rights, powers, duties and obligations of the Trustee
and the Paying Agent conferred on them by such appointment; provided that
each of the Trustee and the Paying Agent, as the case may be, shall
continue to be responsible for its duties and obligations hereunder and
shall not be liable for the actions or omissions of any Master Servicer,
any Special Servicer, the Depositor or the actions or omissions of each
other;
(vi) neither the Trustee nor the Paying Agent shall be required to
obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Paying Agent shall be required to
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(viii) neither the Trustee nor the Paying Agent shall be liable for
any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither the
Trustee nor the Paying Agent shall be required to post any surety or bond
of any kind in connection with the execution or performance of its duties
hereunder; and
(x) except as specifically provided hereunder in connection with the
performance of its specific duties, neither the Trustee nor the Paying
Agent shall be responsible for any act or omission of any Master Servicer,
any Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Paying Agent shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to a REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only if such taxes arise out of a breach by the Paying Agent of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Paying Agent.
(e) If, in connection with any Distribution Date, the Paying Agent
has reported to the Depository the anticipated amount of the distribution to be
made to the Depository on such Distribution Date and the timing of the receipt
from a Master Servicer of any Principal Prepayment or Balloon Payment requires
modification of such anticipated amount of the distribution to be made to the
Depository, the Paying Agent will use commercially reasonable efforts to cause
the Depository to revise the amount of the distribution on a timely basis so
that such Principal Prepayments or Balloon Payments will be included in the
Available Distribution Amount for such Distribution Date. None of the Paying
Agent, the Master Servicers and the Special Servicers will be liable or held
responsible for any resulting delay (or claims by the Depository resulting
therefrom) in the making of such distribution to Certificateholders.
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans
The Trustee and the Paying Agent each makes no representations as to
the validity or sufficiency of this Agreement, the information contained in the
Private Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC Regular Certificates, Floating
Rate Certificates or Residual Certificates (other than the Certificate of
Authentication on the Certificates if the Paying Agent is the Authenticating
Agent) or of any Mortgage Loan, Assignment of Mortgage or related document
except for the representations and covenants made by it and set forth in Section
7.16. Neither the Trustee nor the Paying Agent shall be accountable for the use
or application by the Depositor or any Master Servicer or any Special Servicer
or by each other of any of the Certificates or any of the proceeds of such
Certificates, or for the use or application by the Depositor or any Master
Servicer or any Special Servicer or by each other of funds paid in consideration
of the assignment of the Mortgage Loans to the Trust or deposited into the
Distribution Account or any other fund or account maintained with respect to the
Certificates or any account maintained pursuant to this Agreement or for
investment of any such amounts. No recourse shall be had for any claim based on
any provisions of this Agreement, the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement, the
Prospectus or the Certificates (except with respect to the Trustee (with respect
to the information provided by the Trustee) and the Paying Agent (with respect
to the information provided by the Paying Agent) to the extent of information
furnished by the Trustee and the Paying Agent under, with respect to the
Preliminary Prospectus Supplement, the information contained therein under the
headings "SUMMARY OF FREE WRITING PROSPECTUS--Relevant Parties and
Dates--Trustee" (only with respect to the first sentence thereunder),
"TRANSACTION PARTIES--The Trustee and Custodian" (with respect to the first
through sixth paragraphs), "SUMMARY OF FREE WRITING PROSPECTUS--Relevant Parties
and Dates--Paying Agent" (only with respect to the first sentence thereunder),
and "TRANSACTION PARTIES--The Paying Agent, Certificate Registrar and
Authenticating Agent" (only with respect to the first sentence of the first
paragraph and the second through fourth paragraphs thereunder), and with respect
to the Final Prospectus Supplement (including the Final Prospectus Supplement as
included as Exhibit A to the Private Placement Memorandum), the information
contained therein under the headings "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant
Parties and Dates--Trustee" (only with respect to the first sentence
thereunder), "TRANSACTION PARTIES--The Trustee and Custodian" (with respect to
the first through sixth paragraphs), "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant
Parties and Dates--Paying Agent" (only with respect to the first sentence
thereunder), and "TRANSACTION PARTIES--The Paying Agent, Certificate Registrar
and Authenticating Agent") (only with respect to the first sentence of the first
paragraph and the second through fourth paragraphs thereunder), the Mortgage
Loans or the assignment thereof against the Trustee or the Paying Agent in such
Person's individual capacity and any such claim shall be asserted solely against
the Trust or any indemnitor who shall furnish indemnity as provided herein.
None of the Trustee or the Paying Agent shall be liable for any
action or failure of any action by the Depositor or any Master Servicer (or any
Additional Servicer, Sub-Servicer or subcontractor engaged thereby) or any
Special Servicer (or any Additional Servicer, Sub-Servicer or subcontractor
engaged thereby) or by each other hereunder. None of Trustee or the Paying Agent
shall at any time have any responsibility or liability for or with respect to
the legality, validity or enforceability of the Mortgages or the Mortgage Loans,
or the perfection and priority of the Mortgages or the maintenance of any such
perfection and priority, or for or with respect to the efficacy of the Trust or
its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation, the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon; the validity of the assignment of the Mortgage Loans
to the Trust or of any intervening assignment; the completeness of the Mortgage
Loans; the performance or enforcement of the Mortgage Loans (other than if the
Trustee shall assume the duties of any Master Servicer); the compliance by the
Depositor, each Seller, the Mortgagor or any Master Servicer (or any Additional
Servicer, Sub-Servicer or subcontractor engaged thereby) or any Special Servicer
(or any Additional Servicer, Sub-Servicer or subcontractor engaged thereby) or
by each other with any warranty or representation made under this Agreement or
in any related document or the accuracy of any such warranty or representation
made under this Agreement or in any related document prior to the receipt by a
Responsible Officer of the Trustee of notice or other discovery of any non
compliance therewith or any breach thereof; any investment of monies by or at
the direction of any Master Servicer or any Special Servicer or any loss
resulting therefrom; the failure of any Master Servicer (or any Additional
Servicer, Sub-Servicer or subcontractor engaged thereby) or any Special Servicer
(or any Additional Servicer, Sub-Servicer or subcontractor engaged thereby) to
act or perform any duties required of it on behalf of the Trustee hereunder; or
any action by the Trustee taken at the instruction of any Master Servicer or any
Special Servicer.
Section 7.4 The Trustee and the Paying Agent May Own Certificates
Each of the Trustee and the Paying Agent in its individual or any
other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee or the Paying Agent, as the case
may be.
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent
The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association organized and doing business under the laws of the United States of
America and any state thereof, authorized to exercise corporate trust powers,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "A-1" (without regard to plus or minus) by S&P, "F-1" by Fitch and
"R-1(middle)" by DBRS (or if not rated by DBRS, an equivalent rating (such as
those listed above for Fitch and S&P) by at least one nationally recognized
statistical rating organization (which may include S&P, Fitch and/or Xxxxx'x))
and whose long term senior unsecured debt is at all times rated not less than
"AA-" by Fitch, "A+" by S&P and "AA(low)" by DBRS (or if not rated by DBRS, an
equivalent rating (such as those listed above for Fitch and S&P) by at least two
nationally recognized statistical rating organizations (which may include S&P,
Fitch and/or Xxxxx'x)). If such corporation, national bank 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, national bank 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. In case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.6.
Notwithstanding the foregoing, if the Trustee meets the provisions of this
Section 7.5, but does not meet the provisions of (iii) above, the Trustee shall
be deemed to meet the provisions of (iii) if it appoints a fiscal agent as a
back-up liquidity provider; provided that such fiscal agent shall meet the
requirements of Section 7.5(iii) above and Section 7.18 herein.
The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "A" by S&P, Fitch and DBRS, unless and to the extent Rating
Agency Confirmation is obtained.
Section 7.6 Resignation and Removal of the Trustee or the Paying
Agent
(a) The Trustee or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicers, the Special Servicers, the Swap
Counterparty and the Rating Agencies; provided that such resignation shall not
be effective until its successor shall have accepted the appointment. Upon
receiving such notice of resignation, the Depositor will promptly appoint a
successor trustee or paying agent, as the case may be. If no successor trustee
or paying agent shall have been so appointed, as the case may be, and shall have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or the Paying Agent, as the case may be, may
petition any court of competent jurisdiction for the appointment of a successor
trustee or paying agent, as the case may be. It shall be a condition to the
appointment of a successor trustee that such entity satisfies the eligibility
requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) if the Trustee fails to perform (or acts
with negligence, bad faith or willful misconduct in performing) any of its
obligations set forth in Article XIII, then the Depositor shall (in the case of
clauses (i) through (iv) above) and may (in the case of clause (v) above) send a
written notice of termination to the Trustee (which notice shall specify the
reason for such termination) and remove such Trustee and the Depositor shall
appoint a successor Trustee by written instrument, one copy of which instrument
shall be delivered to the Trustee so removed, one copy to the successor Trustee,
and one copy to each of the Master Servicers and the Rating Agencies. Such
succession shall take effect after a successor trustee has been appointed and
has accepted such appointment.
(c) If at any time (i) the Paying Agent shall cease to be eligible
in accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), (iv) the continuation of the Paying Agent as such would result in
a downgrade, qualification or withdrawal, as applicable, of the rating by any
Rating Agency of any Class of Certificates with a rating as evidenced in writing
by any Rating Agency, (v) if the Paying Agent shall fail (other than by reason
of a Master Servicer's or a Special Servicer's failure to timely perform its
obligations hereunder), to timely publish any report to be delivered, published
or otherwise made available by the Paying Agent pursuant to Sections 5.4 and 5.5
and such failure shall continue unremedied for a period of five days, (vi) if
the Paying Agent should fail to make distributions required pursuant to Section
5.3, Section 10.1 or Article VI or (vii) if the Paying Agent fails to perform
(or acts with negligence, bad faith or willful misconduct in performing) any of
its obligations set forth in Article XIII (other than the failure to file any
Exchange Act report due to the non-receipt or untimely receipt or incomplete
receipt of the Exchange Act reportable information from any other party required
to deliver such information to the Paying Agent), then the Depositor shall (in
the case of clauses (i) through (vi) above) and may (in the case of clauses (v)
through (vii) above) send a written notice of termination to the Paying Agent
(which notice shall specify the reason for such termination) and remove such
Paying Agent and the Depositor shall appoint a successor Paying Agent by written
instrument, one copy of which instrument shall be delivered to the Paying Agent
so removed, one copy to the successor Paying Agent, and one copy to each of the
Trustee, the Master Servicers, the Special Servicers and the Rating Agencies.
(d) The Holders of more than 50% of the Aggregate Certificate
Balance of the Certificates then outstanding may, without cause, at any time
upon written notice to the Trustee or the Paying Agent, as the case may be, and
to the Depositor remove the Trustee or the Paying Agent, as the case may be, by
such written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee or the Paying Agent, as the case may be, so removed; the
Depositor shall thereupon use its best efforts to appoint a successor Trustee or
the Paying Agent, as the case may be, in accordance with this Section.
(e) Any resignation or removal of the Trustee or the Paying Agent,
as the case may be, and appointment of a successor trustee or paying agent
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee or paying agent, as the case
may be, as provided in Section 7.7. Upon any succession of the Trustee or the
Paying Agent under this Agreement, the predecessor Trustee or Paying Agent, as
the case may be, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee or the Paying Agent shall not be liable for any action or
omission of any successor Trustee or Paying Agent, as the case may be.
Section 7.7 Successor Trustee or Paying Agent
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Paying Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent, as the case may be, shall become effective
and such successor Trustee or Paying Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Paying Agent herein, as the case may be. The
predecessor Trustee or Paying Agent shall deliver (at such predecessor's own
expense) to the successor Trustee or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee or
Paying Agent, as the case may be, shall also deliver all records or copies
thereof maintained by the predecessor Trustee or Paying Agent in the
administration hereof as may be reasonably requested by the successor Trustee or
Paying Agent, as applicable, and shall thereupon be discharged from all duties
and responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment as
provided in this Section unless at the time of such appointment such successor
Trustee or Paying Agent, as the case may be, shall be eligible under the
provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or Paying
Agent as provided in this Section, the successor Trustee or Paying Agent shall
mail notice of the succession of such Trustee or Paying Agent hereunder to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to the Rating Agencies. The expenses of such mailing shall be borne by the
successor Trustee or Paying Agent. If the successor Trustee or Paying Agent
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or Paying Agent, the Master Servicer shall cause such notice
to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
(d) Any and all costs and expenses associated with transferring the
duties of a Trustee or Paying Agent that has resigned or been removed or
terminated, as contemplated by Section 7.6, to a successor Trustee or Paying
Agent, including those, if any, associated with transfer of the Mortgage Files
and other documents and statements held by the predecessor Trustee or Paying
Agent to the successor Trustee or Paying Agent, as contemplated by Section
7.6(a), shall be paid by: (i) the predecessor Trustee or Paying Agent, if such
predecessor Trustee or Paying Agent has resigned in accordance with Section
7.6(a) or has been removed in accordance with Sections 7.6(b) or 7.6(c), as
applicable; (ii) the Certificateholders that effected the removal, if the
predecessor Trustee or Paying Agent has been removed without cause in accordance
with Section 7.6(d); and (iii) the Trust, if such costs and expenses are not
paid by the predecessor Trustee or Paying Agent or the subject
Certificateholders, as contemplated by the immediately preceding clauses (i) and
(ii), within 90 days after they are incurred (provided that such predecessor
Trustee or predecessor Paying Agent or such subject Certificateholders, as
applicable, shall remain liable to the Trust for such costs and expenses).
Section 7.8 Merger or Consolidation of Trustee or Paying Agent
Any Person into which the Trustee or Paying Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Trustee or Paying Agent shall
be a party, or any Persons succeeding to the business of such Trustee or Paying
Agent, shall be the successor of such Trustee or Paying Agent, as the case may
be, hereunder, as applicable, provided that such Person shall be eligible under
the provisions of Section 7.5, 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.
Notwithstanding the foregoing, neither the Trustee nor the Paying
Agent may remain the Trustee or the Paying Agent, as the case may be, under this
Agreement after (x) being merged or consolidated with or into any Person that is
a Prohibited Party, or (y) transferring all or substantially all of its assets
to any Person if such Person is a Prohibited Party, except to the extent (i) the
Trustee or Paying Agent, as the case may be, is the surviving entity of such
merger, consolidation or transfer or (ii) the Depositor consents to such merger,
consolidation or transfer, which consent shall not be unreasonably withheld.
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by any Master Servicer or any Special Servicer that such
separate trustee or co-trustee is necessary or advisable) under the laws of any
state in which a property securing a Mortgage Loan is located or for the purpose
of otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust is located. The separate trustees, co
trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders, shall have such powers, rights and
remedies as shall be specified in the instrument of appointment and shall be
deemed to have accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee; provided, further, that the Trustee shall be liable for the actions
of any co-trustee or separate trustee appointed by it and shall have no
liability for the actions of any co-trustee or separate trustee appointed by the
Depositor or the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from
time to time appoint one or more independent third-party agents to perform all
or any portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to a Master Servicer
hereunder) the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust or any portion thereof in any
such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable
by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal
Amount of the Certificates then outstanding may at any time accept the
resignation of or remove any separate trustee, co-trustee or custodian, so
appointed by it or them, if such resignation or removal does not violate
the other terms of this Agreement.
(d) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and co
trustee, upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly
with the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not
be unreasonably withheld, the Trustee, at its sole cost and expense, may appoint
at any time a successor custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
Section 7.10 Authenticating Agents
(a) The Paying Agent shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent and the Depositor; provided that the Trustee may not
terminate the Paying Agent as Authenticating Agent unless the Paying Agent shall
be removed as Paying Agent hereunder. 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 Section 7.10(a), the
Trustee may appoint a successor Authenticating Agent, shall give written notice
of such appointment to the Depositor and shall mail notice of such appointment
to all Holders of Certificates. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. No such Authenticating
Agent shall be appointed unless eligible under the provisions of Section
7.10(a). No Authenticating Agent shall have responsibility or liability for any
action taken by it as such at the direction of the Trustee.
Section 7.11 Indemnification of the Trustee and the Paying Agent
(a) The Trustee, the Certificate Registrar, the Paying Agent (in
each case, whether in its individual capacity or in its capacity as the Trustee,
Certificate Registrar or Paying Agent, as the case may be) and each of its
respective partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents and Controlling Persons shall be entitled to
indemnification from the Trust for any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
incurred without negligence or willful misconduct on their respective part,
arising out of, or in connection with this Agreement, the Mortgage Loans, the
Certificates and the acceptance or administration of the trusts or duties
created hereunder (including, without limitation, any unanticipated loss,
liability or expense incurred in connection with any action or inaction of any
Master Servicer, any Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, is unable to recover within a
reasonable period of time such amount from such third party pursuant to this
Agreement) including the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder and the Trustee, the Certificate Registrar and the Paying Agent
(in each case, whether in its individual capacity or in its capacity as the
Trustee, Certificate Registrar or Paying Agent, as the case may be) and each of
their respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any unanticipated loss, liability or
expense incurred in connection with the provision by the Trustee, the
Certificate Registrar and the Paying Agent of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Certificate
Registrar or the Paying Agent, as the case may be, shall have given the
Depositor, the applicable Master Servicer, the Sellers, each other and the
Holders of the Certificates written notice thereof promptly after a
Responsible Officer of the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, shall have knowledge thereof; provided,
however, that failure to give such notice to the Depositor, such Master
Servicer, the Sellers, each other and the Holders of Certificates shall
not affect the Trustee's, Certificate Registrar's or Paying Agent's, as
the case may be, rights to indemnification herein unless the Depositor's
defense of such claim on behalf of the Trust is materially prejudiced
thereby;
(ii) while maintaining control over its own defense, the Trustee,
the Certificate Registrar or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this Section 7.11,
the Trust shall not be liable for settlement of any such claim by the
Trustee, the Certificate Registrar or the Paying Agent, as the case may
be, entered into without the prior consent of the Depositor, which consent
shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Trustee, the Certificate Registrar or the Paying Agent, as the case
may be, their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Person may
become subject under the 1933 Act, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Private Placement
Memorandum, the Preliminary Prospectus Supplement, the Final Prospectus
Supplement or the Prospectus, or arises out of, or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Person for any legal and other expenses
reasonably incurred by the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, or any such partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
in investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action; provided that the Depositor shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission made in any such Private Placement
Memorandum, Preliminary Prospectus Supplement, Final Prospectus Supplement or
Prospectus in reliance upon and in conformity with written information
concerning the Trustee, the Certificate Registrar or the Paying Agent, as the
case may be, furnished to the Depositor by or on behalf of such Person
specifically for inclusion therein. It is hereby expressly agreed that the only
written information provided by the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, for inclusion in the Preliminary Prospectus
Supplement and Final Prospectus Supplement is set forth, with respect to the
Preliminary Prospectus Supplement, under the headings "SUMMARY OF FREE WRITING
PROSPECTUS--Relevant Parties and Dates--Trustee" (only with respect to the first
sentence thereunder), "TRANSACTION PARTIES--The Trustee" (with respect to the
first through sixth paragraphs), "SUMMARY OF FREE WRITING PROSPECTUS--Relevant
Parties and Dates--Paying Agent" (only with respect to the first sentence
thereunder) and "TRANSACTION PARTIES--The Paying Agent, Certificate Registrar
and Authenticating Agent" (only with respect to the first sentence of the first
paragraph and the second through fourth paragraphs thereunder), and with respect
to the Final Prospectus Supplement (including the Final Prospectus Supplement as
included as Exhibit A to the Private Placement Memorandum), the information
contained therein under the headings "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant
Parties and Dates--Trustee" (only with respect to the first sentence
thereunder), "TRANSACTION PARTIES--The Trustee and Custodian" (with respect to
the first through sixth paragraphs), "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant
Parties and Dates--Paying Agent" (only with respect to the first sentence
thereunder), and "TRANSACTION PARTIES--The Paying Agent, Certificate Registrar
and, Authenticating Agent") (only with respect to the first sentence of the
first paragraph and the second through fourth paragraphs thereunder). The
Trustee, the Certificate Registrar, the Paying Agent, the Custodian or the
Authentication Agent, as the case may be, shall immediately notify the Depositor
and the Sellers if a claim is made by a third party with respect to this Section
7.11(c) entitling such Person, its partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
to indemnification hereunder, whereupon the Depositor shall assume the defense
of any such claim (with counsel reasonably satisfactory to such Person) 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 the Trustee, the Certificate Registrar or the Paying Agent, as
the case may be, their respective partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
may have to indemnification under this Section 7.11(c), unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or removal of the Trustee or the Paying Agent. The Depositor shall
not be indemnified by the Trust for any expenses incurred by the Depositor
arising from any violation or alleged violation of the 1933 Act or 1934 Act by
the Depositor.
(d) An Other Trustee and an Other Paying Agent and any partner,
representative, Affiliate, member, manager, director, officer, employee or agent
of such Other Trustee and Other Paying Agent shall be indemnified by the Trust
and held harmless against (i) the Trust's pro rata share of any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to the related Other Pooling and Servicing Agreement
and this Agreement, and relating to the related Non-Trust Serviced Pari Passu
Loan (but excluding any such losses allocable to the related Non-Trust Serviced
Companion Loan), reasonably requiring the use of counsel or the incurring of
expenses other than any losses incurred by reason of such Other Trustee's or
Other Paying Agent's, respectively, willful misfeasance, bad faith or
negligence, as the case may be, in the performance of its duties under the
related Other Pooling and Servicing Agreement and (ii) any claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses relating to a Non-Trust Serviced
Pari Passu Loan, but only to the extent that such losses arise out of the
actions of the Master Servicers, the Special Servicers or the Trustee, and only
to the extent that such actions are in violation of the such party's duties
under the provisions of this Agreement and to the extent that such actions are
the result of such party's negligence, bad faith or willful misconduct.
Section 7.12 Fees and Expenses of Trustee and the Paying Agent
The Trustee shall be entitled to receive the Trustee Fee, pursuant
to Section 5.3(b)(ii) (which shall not be limited by any provision of law with
respect to the compensation of a trustee of an express trust), for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent. The Trustee and the Paying Agent shall also be
entitled to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee and the Paying Agent in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
other Persons not regularly in its employ), not including expenses incurred in
the ordinary course of performing its duties as Trustee or Paying Agent,
respectively, hereunder, and except any such expense, disbursement or advance as
may arise from the negligence or bad faith of such Person or which is the
responsibility of the Holders of the Certificates hereunder. The provisions of
this Section 7.12 shall survive any termination of this Agreement and the
resignation or removal of the Trustee or the Paying Agent.
Section 7.13 Collection of Moneys
Except as otherwise expressly provided in this Agreement, the
Trustee and the Paying Agent may demand payment or delivery of, and shall
receive and collect, all money and other property payable to or receivable by
the Trustee or the Paying Agent, as the case may be, pursuant to this Agreement.
The Trustee or the Paying Agent, as the case may be, shall hold all such money
and property received by it as part of the Trust and shall distribute it as
provided in this Agreement. If the Trustee or the Paying Agent, as the case may
be, shall not have timely received amounts to be remitted with respect to the
Mortgage Loans from the applicable Master Servicer, the Trustee or the Paying
Agent, as the case may be, shall request that the applicable Master Servicer
make such distribution as promptly as practicable or legally permitted. If the
Trustee or the Paying Agent, as the case may be, shall subsequently receive any
such amount, it may withdraw such request.
Section 7.14 Trustee to Act; Appointment of Successor
(a) On and after the time a Master Servicer is terminated pursuant
to this Agreement in accordance with Sections 8.28 and 8.29, the Trustee shall
be the successor in all respects to such Master Servicer in its capacity under
this Agreement and the transactions set forth or provided for therein and shall
have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on such
Master Servicer by the terms and provisions of this Agreement; provided that,
any failure to perform such duties or responsibilities caused by such Master
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of such Master
Servicer contained in this Agreement or (ii) any obligation incurred by such
Master Servicer prior to its termination or resignation (including, without
limitation, such Master Servicer's obligation to repay losses resulting from the
investment of funds in any account established under this Agreement), except any
ongoing obligations to the Primary Servicers arising after the termination of
such Master Servicer from their servicing rights and obligations under the
applicable Primary Servicing Agreement. In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability granted to
such Master Servicer in this Agreement. As compensation therefor, the Trustee
shall be entitled to receive all the compensation payable to such Master
Servicer set forth in this Agreement, including, without limitation, the Master
Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee
is unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to such terminated Master Servicer hereunder in the assumption of
all of the responsibilities, duties or liabilities of a servicer as the
applicable Master Servicer hereunder and under the applicable Primary Servicing
Agreement. Pending any such appointment, the Trustee shall act in such capacity
as hereinabove provided. Any entity designated by the Trustee as successor
Master Servicer may be an Affiliate of the Trustee; provided that such Affiliate
must meet the standards for the Master Servicer as set forth herein. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree subject to Section 8.10. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The terminated Master
Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of such Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee and successor
servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor servicer to enable the successor servicer
to assume such Master Servicer's functions hereunder and the transfer to the
Trustee or such successor servicer of all amounts which shall at the time be or
should have been deposited by such Master Servicer in the applicable Certificate
Account and any other account or fund maintained with respect to the
Certificates or thereafter be received by such Master Servicer with respect to
the Mortgage Loans. Neither the Trustee nor any other successor servicer shall
be deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by (i)
the failure of the terminated Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, or (ii) restrictions imposed by
any regulatory authority having jurisdiction over such Master Servicer. The
Trustee shall be reimbursed for all of its out-of-pocket expenses incurred in
connection with obtaining such successor Master Servicer by the Trust within 30
days of the Trustee's submission of an invoice with respect thereto, to the
extent such expenses have not been reimbursed by the terminated Master Servicer
as provided herein; such expenses paid by the Trust shall be deemed to be an
Additional Trust Expense.
(c) On and after the time a Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to such Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall,
subject to Section 9.21(d), have all the rights and powers and be subject to all
the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on such Special Servicer by the terms and provisions of this
Agreement; provided that, any failure to perform such duties or responsibilities
caused by such Special Servicer's failure to provide required information shall
not be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no liability relating to (i) the representations and warranties of
such Special Servicer contained in this Agreement or (ii) any obligation
incurred by such Special Servicer prior to its termination or resignation. In
the Trustee's capacity as such successor, the Trustee shall have the same
limitations on liability granted to such Special Servicer in this Agreement. As
compensation therefor, the Trustee shall, subject to Section 9.21(d), be
entitled to receive all the compensation payable to such Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the terminated Special Servicer hereunder in the
assumption of all of the responsibilities, duties or liabilities of the
applicable Special Servicer hereunder. Pending any such appointment, the Trustee
shall act in such capacity as hereinabove provided. Any entity designated by the
Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that such Affiliate must meet the standards for a successor Special
Servicer set forth herein. In connection with such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor,
subject to Section 9.21(d), out of payments on Mortgage Loans as it and such
successor shall agree; provided that no such compensation shall be in excess of
that permitted to the applicable terminated Special Servicer under this
Agreement. The Trustee and such successor shall take such actions, consistent
with this Agreement as shall be necessary to effectuate any such succession. A
terminated Special Servicer shall cooperate with the Trustee and any successor
Special Servicer in effecting the termination of such Special Servicer's
responsibilities and rights under this Agreement, including, without limitation,
notifying Mortgagors of Specially Serviced Mortgage Loans of the assignment of
the special servicing function and providing the Trustee and successor Special
Servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor Special Servicer to enable the successor
Special Servicer to assume such Special Servicer's functions hereunder and the
transfer to the Trustee or such successor Special Servicer of all amounts which
shall at the time be or should have been deposited by the terminated Special
Servicer in the applicable Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by such
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of a terminated
Special Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over a Special Servicer. The Trustee shall be reimbursed for all of
its out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto but only to the extent such expenses have not been reimbursed by
the terminated Special Servicer as provided herein; and such expenses paid by
the Trust shall be deemed to be an Additional Trust Expense.
Section 7.15 Notification to Holders
Upon termination of a Master Servicer, the Paying Agent or a Special
Servicer, or appointment of a successor to such Master Servicer, the Paying
Agent or such Special Servicer, the Trustee, with the assistance of the
Certificate Registrar, shall promptly mail notice thereof by first class mail to
the Rating Agencies, the Operating Adviser, the Sellers and the
Certificateholders at their respective addresses appearing on the Certificate
Register.
Section 7.16 Representations and Warranties of the Trustee and
Paying Agent
(a) LaSalle Bank National Association ("LaSalle"), in its capacity
as the Trustee and the Custodian, hereby represents and warrants as of the date
hereof that:
(i) LaSalle is a national banking association, duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by LaSalle of this Agreement have
been duly authorized by all necessary action on the part of LaSalle,
neither the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated in this Agreement, nor compliance with
the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on
LaSalle or its properties that would materially and adversely affect
LaSalle's ability to perform its obligations under this Agreement, (ii)
the organizational documents of LaSalle, or (iii) the terms of any
material agreement or instrument to which LaSalle is a party or by which
it is bound; LaSalle is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency, which default would materially and
adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by LaSalle of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or
other governmental authority or agency, except such as has been or will be
obtained, given, effected or taken in order for LaSalle to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by LaSalle
and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of LaSalle,
enforceable against LaSalle in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting creditors' rights
generally as from time to time in effect, and to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and
(v) no litigation is pending or, to LaSalle's knowledge, threatened,
against LaSalle that, either in one instance or in the aggregate, would
draw into question the validity of this Agreement, or which would be
likely to impair materially the ability of LaSalle to perform under the
terms of this Agreement.
(b) Xxxxx Fargo Bank, National Association ("Xxxxx Fargo Bank"), in
its capacity as the Paying Agent, the Certificate Registrar and the
Authenticating Agent, hereby represents and warrants as of the date hereof that:
(i) Xxxxx Fargo Bank is a national banking association, duly
organized, validly existing and in good standing under the laws governing
its creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by Xxxxx Fargo Bank of this
Agreement have been duly authorized by all necessary action on the part of
Xxxxx Fargo Bank; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement,
nor compliance with the provisions of this Agreement, will conflict with
or result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on Xxxxx Fargo Bank or its properties that would materially
and adversely affect Xxxxx Fargo Bank's ability to perform its obligations
under this Agreement, (ii) the organizational documents of Xxxxx Fargo
Bank, or (iii) the terms of any material agreement or instrument to which
Xxxxx Fargo Bank is a party or by which it is bound; Xxxxx Fargo Bank is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by Xxxxx Fargo Bank of
this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or
order of, the giving of notice to or the registration with any state,
federal or other governmental authority or agency, except such as has been
or will be obtained, given, effected or taken in order for Xxxxx Fargo
Bank to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by Xxxxx
Fargo Bank and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of Xxxxx
Fargo Bank, enforceable against Xxxxx Fargo Bank in accordance with its
terms, subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to Xxxxx Fargo Bank's knowledge,
threatened, against Xxxxx Fargo Bank that, either in one instance or in
the aggregate, would draw into question the validity of this Agreement, or
which would be likely to impair materially the ability of Xxxxx Fargo Bank
to perform under the terms of this Agreement.
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent
Each of the Trustee and the Paying Agent, at its own respective
expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions
Insurance Policy. The Errors and Omissions Insurance Policy and Fidelity Bond
shall be issued by a Qualified Insurer in form and in amount customary for
trustees or paying agents in similar transactions (unless the Trustee or the
Paying Agent, as the case may be, self insures as provided below). In the event
that any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to
be in effect, the Trustee or the Paying Agent, as the case may be, shall obtain
a comparable replacement policy or bond from an insurer or issuer meeting the
requirements set forth above as of the date of such replacement. So long as the
long-term debt rating of the Trustee or the Paying Agent, as the case may be, is
not less than "A" as rated by S&P and Fitch, if rated by S&P and Fitch,
respectively, and "A" as rated by DBRS, if rated by DBRS or, if not rated by
DBRS, an equivalent rating such as those listed above by two nationally
recognized statistical rating organizations (which may include S&P, Fitch and/or
Xxxxx'x), the Trustee or the Paying Agent, as the case may be, may self-insure
for the Fidelity Bond and the Errors and Omissions Insurance Policy.
Section 7.18 Appointment of a Fiscal Agent
(a) In order to satisfy the eligibility requirements of Section 7.5
(insofar as such requirements relate to ratings), the Trustee may appoint a
fiscal agent (a "Fiscal Agent"). Any Fiscal Agent shall at all times maintain a
long-term unsecured debt rating of no less than "AA-" from Fitch (or "A+" from
Fitch, if such Fiscal Agent's short-term unsecured debt rating is at least "F-1"
by Fitch), a long-term unsecured debt rating of no less than "AA-" from S&P (or
"A+" from S&P, if such Fiscal Agent's short-term unsecured debt rating is at
least "A-1" by S&P) and a long-term unsecured debt rating of no less than
"AA(low)" as rated by DBRS, if rated by DBRS or, if not rated by DBRS, an
equivalent rating such as those listed above by two nationally recognized
statistical rating organizations (which may include S&P, Fitch and/or Xxxxx'x)
(or, in the case of any Rating Agency, such other rating as shall not result in
a downgrade, qualification or withdrawal of the rating by the Rating Agencies of
any Class of Certificates with a rating as evidenced in writing by the Rating
Agencies).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, any Fiscal Agent appointed by the Trustee shall make such Advance as and
when required by the terms of this Agreement on behalf the Trustee as if such
Fiscal Agent were the Trustee hereunder. To the extent that a Fiscal Agent makes
an Advance pursuant to this Section 7.18(b) or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities that the Trustee is entitled to
hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any interest owed to such Fiscal Agent in respect of
unreimbursed Advances) incurred by such Fiscal Agent in connection with the
transactions contemplated by this Agreement shall be borne by the Trustee, and
neither the Trustee nor such Fiscal Agent shall be entitled to reimbursement
therefor from any of the Trust, the Depositor, the Master Servicers or the
Special Servicers.
(d) The obligations of a Fiscal Agent set forth in this Section 7.18
or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. A Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 7.5; provided that a Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 7.5). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of a Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
7.18(a) or (ii) the Trustee shall have received written confirmation from the
Rating Agencies that the succession of such proposed successor fiscal agent
would not, in and of itself, result in a downgrade, qualification or withdrawal
of the rating by the Rating Agencies of any Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and the holders of any Serviced Companion Loan in writing of
the appointment, resignation or removal of any Fiscal Agent.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole
(and, solely as it relates to a Serviced Loan Group, for the benefit of the
holder of the related Serviced Companion Loan), the Master Servicers shall
service and administer the Mortgage Loans (and the Master Servicers shall also
service each related Serviced Companion Loan, if applicable) in accordance with
the Servicing Standard and the terms of this Agreement (subject to the servicing
of a Non-Trust Serviced Pari Passu Loan by the related Other Master Servicer and
the related Other Special Servicer in accordance with the related Other Pooling
and Servicing Agreement). The Capmark Master Servicer shall be the Master
Servicer with respect to the MSMCH Loans, the GECC Loans, the PCFII Loans and
the NatCity Loans, the related Serviced Companion Loans (if applicable) and
other assets in the Trust (other than the RBC Trust Assets, the Nationwide Trust
Assets and the Co-op Trust Assets) and, as such, shall service and administer
such assets as shall be required of the Master Servicer hereunder with respect
to such Trust assets. The Xxxxx Fargo Master Servicer shall be the Master
Servicer with respect to the RBC Loans and the Nationwide Loans, and the related
Serviced Companion Loans (if applicable) and, as such, shall service and
administer the RBC Trust Assets and the Nationwide Trust Assets as shall be
required of the Master Servicer hereunder with respect to the RBC Trust Assets
and the Nationwide Trust Assets. The NCB Master Servicer shall be the Master
Servicer with respect to the NCB, FSB Loans and, as such, shall service and
administer the Co-op Trust Assets as shall be required of such Master Servicer
hereunder with respect to the Co-op Trust Assets. With respect to a Non-Trust
Serviced Pari Passu Loan, the applicable Master Servicer shall enforce the
rights of the Trustee, as holder of such Non-Trust Serviced Pari Passu Loan,
under the related Co-Lender Agreement and the related Other Pooling and
Servicing Agreement; provided, however, that any expenses incurred by the
applicable Master Servicer in connection with such enforcement shall be a
Servicing Advance. Certain of the provisions of this Article VIII make explicit
reference to their applicability to Mortgage Loans and Serviced Companion Loans;
notwithstanding such explicit references, references to "Mortgage Loans"
contained in this Article VIII, unless otherwise specified, shall be construed
to refer also to the related Serviced Companion Loan (but any other terms that
are defined in Article I and used in this Article VIII shall be construed
according to such definitions without regard to this sentence). Certain of the
provisions of this Article VIII make explicit reference to their
non-applicability to a Non-Trust Serviced Pari Passu Loan; notwithstanding such
explicit references, references to "Mortgage Loans" and "Mortgaged Property"
contained in this Article VIII, unless otherwise specified to include a
Non-Trust Serviced Pari Passu Loan, the obligations of the Master Servicers or
Special Servicers pursuant to this Agreement, shall be construed to exclude a
Non-Trust Serviced Pari Passu Loan and any related real property (but any other
terms that are defined in Article I and used in this Article VIII shall be
construed according to such definitions without regard to this sentence).
Notwithstanding anything contained in Article IV or in this Article
VIII to the contrary, the Master Servicers will not be required to make any
Servicing Advances with respect to any Non-Trust Serviced Pari Passu Loan
(except as explicitly provided for in the fourth sentence of the immediately
preceding paragraph).
In connection with such servicing and administration, each Master
Servicer shall service in accordance with the Servicing Standard; provided,
however, that nothing herein contained shall be construed as an express or
implied guarantee by the applicable Master Servicer of the collectibility of
payments on the Mortgage Loans or shall be construed as impairing or adversely
affecting any rights or benefits specifically provided by this Agreement to the
applicable Master Servicer, including with respect to Master Servicing Fees or
the right to be reimbursed for Advances.
(b) The applicable Master Servicer, in the case of an event
specified in clause (x) of this subclause (b), and the applicable Special
Servicer, in the case of an event specified in clause (y) of this subclause (b),
shall each send a written notice to the other and to the Trustee and the Paying
Agent, the Operating Adviser, the respective Seller and, in the case of a
Serviced Loan Group, the holder of the related Serviced Companion Loan, within
two Business Days after becoming aware (x) that a Servicing Transfer Event has
occurred with respect to a Mortgage Loan or (y) that a Mortgage Loan has become
a Rehabilitated Mortgage Loan, which notice shall identify the applicable
Mortgage Loan and, in the case of an event specified in clause (x) of this
subclause (b) above, the Servicing Transfer Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if any of the applicable Master Servicer, the applicable Special
Servicer or the applicable Primary Servicer has actual knowledge of any event
giving rise to a claim under an Environmental Insurance Policy, such Person
shall notify the related Master Servicer, the related Special Servicer and the
related Primary Servicer, as applicable, to such effect and such Master Servicer
shall take reasonable actions as are in accordance with the Servicing Standard
and the terms and conditions of such Environmental Insurance Policy to make a
claim thereunder and achieve the payment of all amounts to which the Trust is
entitled thereunder. Any legal fees or other out-of-pocket costs incurred in
accordance with the Servicing Standard in connection with any such claim shall
be paid by, and reimbursable to, the applicable Master Servicer or the
applicable Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan that is the subject of an Environmental Insurance Policy, the
applicable Master Servicer shall give prompt written notice of such extension to
the insurer under the Environmental Insurance Policy and shall execute such
documents as are reasonably required by such insurer to procure an extension of
such policy (if available).
(e) The parties hereto acknowledge that each Serviced Companion Loan
is subject to the terms and conditions of the related Co-Lender Agreement. With
respect to each Senior Mortgage Loan, the Trustee, the applicable Master
Servicer and the applicable Special Servicer recognize the respective rights and
obligations of the Trust and the holder of each Serviced Companion Loans under
the related Co-Lender Agreement, including, with respect to the allocation of
collections on or in respect of each Senior Mortgage Loan and the Serviced
Companion Loan in accordance with the related Co-Lender Agreement. The
applicable Master Servicer shall comply with the applicable provisions of each
Co-Lender Agreement, and, if any loan in a Serviced Loan Group becomes a
Specially Serviced Mortgage Loan, the applicable Special Servicer shall comply
with the applicable provisions of the related Co-Lender Agreement.
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers
Each Master Servicer, at its expense, shall maintain in effect a
Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The
Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall
be issued by a Qualified Insurer (unless a Master Servicer self insures as
provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the applicable Master
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long term rating of a Master Servicer (or its
corporate parent) is not in any event less than "A" as rated by S&P, "A" as
rated by Fitch, and "A" as rated by DBRS (or, if not rated by DBRS, (a) an
equivalent rating (such as those listed above for Fitch and S&P) by two
nationally recognized statistical rating organizations (which may include S&P,
Fitch and/or Xxxxx'x) or (b) at least A:IX by A.M. Best's Key Rating Guide),
respectively, such Master Servicer may self insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
Section 8.3 Master Servicers' General Power and Duties
(a) Each Master Servicer shall service and administer the Mortgage
Loans (other than the Non-Trust Serviced Pari Passu Loans) it is required to
service hereunder and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and 9.39
and Article XII hereof and as otherwise provided herein and by the Code, have
full power and authority to do any and all things which it may deem necessary or
desirable in connection with such servicing and administration in accordance
with the Servicing Standard. To the extent consistent with the foregoing and
subject to any express limitations and provisions set forth in this Agreement,
such power and authority shall include, without limitation, the right, subject
to the terms hereof, (A) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents (including, without limitation, estoppel certificates,
financing statements, continuation statements, title endorsements and reports
and other documents and instruments necessary to preserve and maintain the lien
on the related Mortgaged Property and related collateral), (B) to consent to
assignments and assumptions or substitutions, and transfers of interest of any
Mortgagor, in each case subject to and in accordance with the terms of the
related Mortgage Loan and Section 8.7, (C) to collect any Insurance Proceeds,
(D) subject to Sections 8.7 and 8.18, to consent to any subordinate financings
to be secured by any related Mortgaged Property to the extent that such consent
is required pursuant to the terms of the related Mortgage or which otherwise is
required, and, subject to Sections 8.7 and 8.18, to consent to any mezzanine
debt to the extent such consent is required pursuant to the terms of the related
Mortgage; (E) to consent to the application of any proceeds of insurance
policies or condemnation awards to the restoration of the related Mortgaged
Property or otherwise and to administer and monitor the application of such
proceeds and awards in accordance with the terms of the Mortgage Loan as the
Master Servicer deems reasonable under the circumstances, (F) to execute and
deliver, on behalf of the Certificateholders and the Trustee, documents relating
to the management, operation, maintenance, repair, leasing and marketing of the
related Mortgaged Properties, including agreements and requests by the Mortgagor
with respect to modifications of the standards of operation and management of
the Mortgaged Properties or the replacement of asset managers, (G) to consent to
any operation or action under a Mortgage Loan that is contemplated or permitted
under a Mortgage or other documents evidencing or securing the applicable
Mortgage Loan (either as a matter of right or upon satisfaction of specified
conditions), (H) to obtain, release, waive or modify any term other than a Money
Term of a Mortgage Loan and related documents subject to and to the extent
permitted by Section 8.18, (I) to exercise all rights, powers and privileges
granted or provided to the holder of the Mortgage Notes under the terms of the
Mortgage, including all rights of consent or approval thereunder, (J) to enter
into lease subordination agreements, non-disturbance and attornment agreements
or other leasing or rental arrangements which may be requested by the Mortgagor
or the Mortgagor's tenants, (K) to join the Mortgagor in granting, modifying or
releasing any easements, covenants, conditions, restrictions, equitable
servitudes, or land use or zoning requirements with respect to the Mortgaged
Properties to the extent such does not adversely affect the value of the related
Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf of
itself, the Trustee, the Trust or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties, and (M) cause to be held on behalf of the
Trustee, in accordance with the terms of any Mortgage Loan and this Agreement,
Defeasance Collateral. The foregoing clauses (A) through (M) are referred to
collectively as "Master Servicer Consent Matters." In addition, each Master
Servicer, consistent with the Servicing Standard, may waive (i) any default
interest and Late Fees with respect to its Mortgage Loans that are not Specially
Serviced Mortgage Loans and (ii) default interest on a Balloon Payment (but only
with the consent of the applicable Special Servicer); provided that, to the
extent the applicable Master Servicer waives any default interest and Late Fees,
any outstanding Advance Interest with respect to the related Mortgage Loan (or
Serviced Companion Loan, as applicable) that would otherwise have been paid out
of such default interest and Late Fees shall be paid out of the additional
servicing compensation payable to such Master Servicer with respect to that
Mortgage Loan (or Serviced Companion Loan, as applicable); and provided,
further, that if no additional servicing compensation is available to offset the
outstanding Advance Interest with respect to the Mortgage Loan (or Serviced
Companion Loan) that would otherwise be offset by the default interest and Late
Fees, then the applicable Master Servicer shall not waive such default interest
and Late Fees unless it is the first such waiver with respect to the subject
Mortgage Loan (or Serviced Companion Loan, as applicable).
Notwithstanding the above, the Master Servicers shall have no power
to (i) waive any Prepayment Premiums or (ii) consent to any modification of a
Money Term. In addition, subject to the Servicing Standard, the Master Servicers
shall not accept any prepayment of principal with respect to any Mortgage Loan
on any date other than the related Due Date unless (i) such payment is
accompanied by a payment of the interest due with respect to such Mortgage Loan
up to the next succeeding Due Date, (ii) such prepayment does not result in the
Trust incurring a Prepayment Interest Shortfall or (iii) such prepayment is
required to be permitted under the related Mortgage Loan documents on a date
other than the related Due Date. Nothing contained in this Agreement shall limit
the ability of the Master Servicers to lend money to (to the extent not secured,
in whole or in part, by any Mortgaged Property, except for a Co-op Mortgage Loan
as to which the NCB, FSB Subordinate Debt Conditions have been satisfied in
which case a subordinate loan may be secured by a mortgage lien on the related
Mortgaged Property), accept deposits from and otherwise generally engage in any
kind of business or dealings with any Mortgagor as though the Master Servicer
were not a party to this Agreement or to the transactions contemplated hereby;
provided, however, that this sentence shall not modify the Servicing Standard.
(b) No Master Servicer shall be obligated to service and administer
the Mortgage Loans which have become and continue to be Specially Serviced
Mortgage Loans, except as specifically provided herein. Such Master Servicer
shall be required to make all calculations and prepare all reports required
hereunder with respect to such Specially Serviced Mortgage Loans (other than
calculations and reports expressly required to be made by the applicable Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing Advances as set forth
herein, make P&I Advances as set forth herein and render such incidental
services with respect to such Specially Serviced Mortgage Loans (in each case,
subject to such Advance not being a Nonrecoverable Advance), all as are
specifically provided for herein, but shall have no other servicing or other
duties with respect to such Specially Serviced Mortgage Loans. Each Master
Servicer shall give notice within two Business Days to the applicable Special
Servicer of any collections it receives from any Specially Serviced Mortgage
Loans, subject to changes agreed upon from time to time by such Special Servicer
and such Master Servicer. Such Special Servicer shall instruct within two
Business Days after receiving such notice the applicable Master Servicer on how
to apply such funds. The applicable Master Servicer within one Business Day
after receiving such instructions shall apply such funds in accordance with the
applicable Special Servicer's instructions. Each Mortgage Loan that becomes a
Specially Serviced Mortgage Loan shall continue as such until such Mortgage Loan
becomes a Rehabilitated Mortgage Loan. No Master Servicer shall be required to
initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign the Powers of Attorney attached hereto as Exhibit X-0X, Xxxxxxx X-0X
and Exhibit S-1C. The Master Servicers, shall promptly notify the Trustee of the
recording of any document on behalf of the Trustee under such Power-of-Attorney.
From time to time until the termination of the Trust, upon receipt of additional
unexecuted powers of attorney from the Master Servicers or the Special
Servicers, the Trustee shall execute and return to any Master Servicer, any
Special Servicer or any Primary Servicer any additional powers of attorney and
other documents necessary or appropriate to enable such Master Servicer and such
Special Servicer to service and administer the Mortgage Loans including, without
limitation, documents relating to the management, operation, maintenance,
repair, leasing or marketing of the Mortgaged Properties. Each Master Servicer
shall indemnify the Trustee for any costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with the intentional or
negligent misuse of such power of attorney by a Master Servicer. Notwithstanding
anything contained herein to the contrary, neither the Master Servicers nor the
Special Servicers shall, without the Trustee's written consent: (i) initiate any
action, suit or proceeding directly relating to the servicing of the Mortgage
Loans solely under the Trustee's name without indicating such Master Servicer's
or Special Servicer's, as applicable, representative capacity, (ii) initiate any
other action, suit or proceeding not directly relating to the servicing of the
Mortgage Loans (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or the Sellers for breaches
of representations and warranties) solely under the Trustee's name, (iii) engage
counsel to represent the Trustee in any action, suit or proceeding not directly
related to the servicing of the Mortgage Loans (including but not limited to
actions, suits or proceedings against Certificateholders, or against the
Depositor or the Sellers for breaches of representations and warranties), or
(iv) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other actions with the intent to
cause, and that actually causes, the Trustee to be registered to do business in
any state. The limitations of the preceding clause shall not be construed to
limit any duty or obligation imposed on the Trustee under any other provision of
this Agreement.
(d) Each Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties and other than
the Non-Trust Serviced Pari Passu Loans).
(e) Each Master Servicer (or any Primary Servicer on its behalf)
shall segregate and hold all funds collected and received pursuant to any
Mortgage Loan (other than a Non-Trust Serviced Pari Passu Loan) constituting
Escrow Amounts separate and apart from any of its own funds and general assets
and shall establish and maintain one or more segregated custodial accounts
(each, an "Escrow Account") into which all Escrow Amounts shall be deposited
within one Business Day after receipt. Each Escrow Account shall be an Eligible
Account except with respect to Mortgage Loans identified on Schedule VII for
which Escrow Accounts shall be transferred to Eligible Accounts at the earliest
date permitted under the related Mortgage Loan documents. The applicable Master
Servicer shall also deposit into each applicable Escrow Account any amounts
representing losses on Eligible Investments pursuant to the immediately
succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which
are required to be applied to the restoration or repair of any Mortgaged
Property pursuant to the related Mortgage Loan. Each Escrow Account shall be
maintained in accordance with the requirements of the related Mortgage Loan and
in accordance with the Servicing Standard. Withdrawals from an Escrow Account
may be made only:
(i) to effect timely payments of items constituting Escrow Amounts
for the related Mortgage Loan;
(ii) to transfer funds to the applicable Certificate Account (or any
sub-account thereof) to reimburse the applicable Master Servicer for any
Advance (or the Trust for any Unliquidated Advance) relating to Escrow
Amounts, but only from amounts received with respect to the related
Mortgage Loan which represent late collections of Escrow Amounts
thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any interest
or investment income earned on funds deposited in the applicable Escrow
Account if such income is required to be paid to the related Mortgagor
under applicable law or by the terms of the Mortgage Loan, or otherwise to
the applicable Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were not
required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding two sentences, (i) each Master
Servicer may direct any depository institution or trust company in which the
applicable Escrow Accounts are maintained to invest the funds held therein in
one or more Eligible Investments; provided, however, that such funds shall be
either (x) immediately available or (y) available in accordance with a schedule
which will permit such Master Servicer to meet the payment obligations for which
the applicable Escrow Account was established; (ii) each Master Servicer shall
be entitled to all income and gain realized from any such investment of funds as
additional servicing compensation; and (iii) each Master Servicer shall deposit
from its own funds in the applicable Escrow Account the amount of any loss
incurred in respect of any such investment of funds on or before the next Master
Servicer Remittance Date. The Master Servicers shall not direct the investment
of funds held in any Escrow Account and retain the income and gain realized
therefrom if the terms of the related Mortgage Loan or applicable law permit the
Mortgagor to be entitled to the income and gain realized from the investment of
funds deposited therein, and the Master Servicers shall not be required to
invest amounts on deposit in applicable Escrow Accounts in Eligible Investments
or Eligible Accounts to the extent that the Master Servicers are required by
either law or under the terms of any related Mortgage Loan to deposit or invest
(or the Mortgagor is entitled to direct the deposit or investment of) such
amounts in another type of investments or accounts. In the event a Master
Servicer is not entitled to direct the investment of such funds, (1) such Master
Servicer shall direct the depository institution or trust company in which such
Escrow Accounts are maintained to invest the funds held therein in accordance
with the Mortgagor's written investment instructions, if the terms of the
related Mortgage Loan or applicable law require such Master Servicer to invest
such funds in accordance with the Mortgagor's directions; and (2) in the absence
of appropriate written instructions from the Mortgagor, the Master Servicers
shall have no obligation to, but may be entitled to, direct the investment of
such funds; provided, however, that in either event (i) such funds shall be
either (y) immediately available or (z) available in accordance with a schedule
which will permit the Master Servicers to meet the payment obligations for which
the applicable Escrow Account was established, and (ii) the Master Servicers
shall have no liability for any loss in investments of such funds that are
invested pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicers and the Special
Servicers to the Trustee and the Paying Agent and to each other under this
Agreement is intended by the parties to be that of an independent contractor and
not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of
the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
applicable Master Servicer shall establish and maintain, in accordance with the
Servicing Standard, one or more lock-box, cash management or similar accounts
("Lock-Box Accounts") to be held outside the Trust and maintained by such Master
Servicer in accordance with the terms of the related Mortgage. No Lock-Box
Account is required to be an Eligible Account, unless otherwise required
pursuant to the related Mortgage Loan documents. The applicable Master Servicer
shall apply the funds deposited in such accounts in accordance with terms of the
related Mortgage Loan documents, any Lock-Box Agreement and in accordance with
the Servicing Standard.
(h) The applicable Master Servicer or any Primary Servicer on its
behalf shall process all defeasances of Mortgage Loans in accordance with the
terms of the Mortgage Loan documents (provided that notwithstanding such terms,
the applicable Master Servicer or Primary Servicer, as applicable, may accept
any defeasance collateral satisfying clause (i) in the second succeeding
sentence; provided, that it receives a Nondisqualification Opinion with respect
thereto), and shall be entitled to any fees paid relating thereto (other than
the consent fee payable to MSMCH in connection with the MSMCH Defeasance Rights
and Obligations). The applicable Master Servicer shall not permit defeasance (or
partial defeasance if permitted under the Mortgage Loan) of any Mortgage Loan on
or before the second anniversary of the Closing Date unless such defeasance will
not result in an Adverse REMIC Event and such Master Servicer has received an
opinion of counsel to such effect and all items in the following sentence have
been satisfied. Subsequent to the second anniversary of the Closing Date, the
applicable Master Servicer, in connection with the defeasance of a Mortgage Loan
shall require (to the extent it is not inconsistent with the Servicing Standard)
that: (i) the defeasance collateral consists of "government securities" as
defined in the 1940 Act (inclusive of agency securities), subject to Rating
Agency approval, (ii) such Master Servicer has received evidence satisfactory to
it, that the defeasance will not result in an Adverse REMIC Event, (iii) either
(A) the related Mortgagor designates a Single-Purpose Entity (if the Mortgagor
no longer complies) to own the Defeasance Collateral (subject to customary
qualifications) or (B) such Master Servicer has established a Single-Purpose
Entity to hold all Defeasance Collateral relating to the Defeasance Loans (in
its corporate capacity and not as agent of or on behalf of the Trust or the
Trustee), (iv) such Master Servicer has requested and received from the
Mortgagor (A) an opinion of counsel that the Trustee will have a perfected,
first priority security interest in such Defeasance Collateral and (B) written
confirmation from a firm of independent accountants stating that payments made
on such Defeasance Collateral in accordance with the terms thereof will be
sufficient to pay the subject Mortgage Loan (or the defeased portion thereof in
connection with a partial defeasance) in full on or before its Maturity Date
(or, in the case of an ARD Loan, on or before its Anticipated Repayment Date)
and to timely pay each subsequent Scheduled Payment, (v) (A) such Master
Servicer shall receive a Rating Agency Confirmation if the Mortgage Loan
(together with any other Mortgage Loan with which it is cross-collateralized)
has a Principal Balance greater than the lesser of $35,000,000 and 5% of the
Aggregate Certificate Balance (or such higher threshold as shall be published by
S&P), unless such Rating Agency has waived in writing such Rating Agency
Confirmation requirement or (B) if the Mortgage Loan is less than or equal to
both of the amounts set forth in clause (A), either a Notice and Certification
in the form attached hereto as Exhibit Z (or such less restrictive form as shall
be adopted by S&P) or a Rating Agency Confirmation is received from S&P and (vi)
a Rating Agency Confirmation is received if the Mortgage Loan is one of the ten
largest Mortgage Loans, by Principal Balance. Any customary and reasonable
out-of-pocket expense incurred by the applicable Master Servicer pursuant to
this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan
pursuant to the related Mortgage, Mortgage Note or other pertinent document, if
so allowed by the terms of such documents.
The parties hereto acknowledge that, if a Seller shall have breached
the representation set forth under the heading "Releases of Mortgaged Property"
in Exhibit 2 to the Mortgage Loan Purchase Agreements, regarding the obligations
of a Mortgagor to pay the costs of a tax opinion associated with the full or
partial release or substitution of collateral for a Mortgage Loan because the
related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, to the extent an amount is due and not paid by the
Mortgagor, then the sole obligation of the related Seller shall be to pay for
such tax opinion. In addition, the parties hereto acknowledge that, if a Seller
shall have breached the representation set forth under the heading "Defeasance
and Assumption Costs" in Exhibit 2 to the Mortgage Loan Purchase Agreements,
regarding the obligation of a Mortgagor to pay the reasonable costs and expenses
associated with a defeasance or assumption of the related Mortgage Loan, because
the related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, including, but not limited to, amounts owed to one or
both Rating Agencies, then the sole obligation of the related Seller shall be to
pay an amount equal to such insufficiency or expense to the extent the related
Mortgagor is not required to pay such amount. Promptly upon receipt of notice of
such insufficiency or unpaid expenses or costs, the applicable Master Servicer
shall request the related Seller to make such payment by deposit to the
applicable Certificate Account. The related Seller shall have no obligation to
pay for any of the foregoing costs if the applicable Mortgagor has an obligation
to pay for such costs.
In the case of a Specially Serviced Mortgage Loan, the applicable
Master Servicer shall process any defeasance of such Specially Serviced Mortgage
Loan in accordance with the original terms of the respective Mortgage Loan
documents following a request by the applicable Special Servicer that such
Master Servicer do so, which request shall be accompanied by a waiver of any
condition of defeasance that an "event of default" under such Specially Serviced
Mortgage Loan not have occurred or be continuing, and such Master Servicer shall
be entitled to 100% of any fees paid relating to such defeasance (other than the
consent fee payable in connection with the MSMCH Defeasance Rights and
Obligations). If such "event of default" is on account of an uncured payment
default, the applicable Special Servicer will process the defeasance of such
Specially Serviced Mortgage Loan, and such Special Servicer shall be entitled to
100% of any fees paid relating to such defeasance (other than the consent fee
payable in connection with the MSMCH Defeasance Rights and Obligations).
Notwithstanding the foregoing, with respect to the Mortgage Loans
originated or acquired by MSMCH and subject to defeasance, MSMCH has retained
the right to designate and establish the successor borrower and to purchase or
cause the purchase on behalf of the related borrower of the related defeasance
collateral ("MSMCH Defeasance Rights and Obligations"). In the event the
applicable Master Servicer receives notice of a defeasance request with respect
to a Mortgage Loan originated or acquired by MSMCH and subject to defeasance,
the applicable Master Servicer shall provide upon receipt of such notice,
written notice of such defeasance request to MSMCH or its assignee. Until such
time as MSMCH provides written notice to the contrary, notice of a defeasance of
a Mortgage Loan with MSMCH Defeasance Rights and Obligations shall be delivered
to MSMCH pursuant to the notice provisions of this Agreement.
(i) The applicable Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Mortgagor under a ground lease,
confirm whether or not on or prior to the date that is thirty (30) days after
receipt of the related Servicer Mortgage File by such Master Servicer (or
Primary Servicer, if applicable), the Seller has notified the related ground
lessor of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement, and informed such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to such Master Servicer (as
evidenced by delivery of a copy thereof to such Master Servicer). Such Master
Servicer shall promptly notify the ground lessor if the Seller has failed to do
so by the thirtieth day after the Closing Date.
(j) Pursuant to the related Co-Lender Agreement with respect to the
related Non-Trust Serviced Loan Group, the owner of a Non-Trust Serviced Pari
Passu Loan has agreed that such owner's rights in, to and under such Non-Trust
Serviced Pari Passu Loan are subject to the servicing and all other rights of
the related Other Master Servicer and the related Other Special Servicer, and
the related Other Master Servicer and the related Other Special Servicer are
authorized and obligated to service and administer such Non-Trust Serviced Pari
Passu Loan pursuant to the related Other Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the applicable Master Servicer's obligations and responsibilities
hereunder and the applicable Master Servicer's authority with respect to a
Non-Trust Serviced Pari Passu Loan are limited by and subject to the terms of
the related Co-Lender Agreement and the rights of the related Other Master
Servicer and the related Other Special Servicer with respect thereto under the
related Other Pooling and Servicing Agreement. The applicable Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to enforce
the rights of the Trustee (as holder of a Non-Trust Serviced Pari Passu Loan)
under the related Co-Lender Agreement and the related Other Pooling and
Servicing Agreement. The applicable Master Servicer shall take such actions as
it shall deem reasonably necessary to facilitate the servicing of a Non-Trust
Serviced Pari Passu Loan by the related Other Master Servicer and the related
Other Special Servicer including, but not limited to, delivering appropriate
Requests for Release to the Trustee and Custodian (if any) in order to deliver
any portion of the related Mortgage File to the related Other Master Servicer or
the related Other Special Servicer under the related Other Pooling and Servicing
Agreement.
(k) Pursuant to the Co-Lender Agreements, with respect to the
Serviced Loan Group, the holders of the Serviced Companion Loans have agreed
that the applicable Master Servicer and the applicable Special Servicer are
authorized and obligated to service and administer the Serviced Companion Loans
pursuant to this Agreement, but subject, nevertheless, to the terms and
provisions of the Co-Lender Agreement. With respect to each Serviced Loan Group,
the applicable Master Servicer shall be entitled, during any period when such
Serviced Loan Group does not constitute a Specially Serviced Mortgage Loan, to
exercise the rights and powers granted under the applicable Co-Lender Agreement
to the "Note A Holder" (or a similar reference to the holder of the applicable
Mortgage Loan) and/or the "Master Servicer" or the "Servicer" (as the context
requires) referred to therein, subject to the limitations of the applicable
Co-Lender Agreement. For the avoidance of doubt, the parties acknowledge that
neither the applicable Master Servicer nor the applicable Special Servicer shall
be entitled or required to exercise the rights and powers granted to the "Note B
Holder" or the "Note C Holder" (or a similar reference to the holder of the
applicable Serviced Companion Loan) as defined under the related Co-Lender
Agreement. Nothing in this Section 8.3(k) shall be construed to add to or expand
the responsibilities and duties of any Master Servicer or any Special Servicer
as expressly set forth in this Agreement and the Co-Lender Agreements with
respect to the Serviced Companion Loan. To the extent of any conflicts between
the provisions of this Agreement with respect to the servicing and
administration of the Serviced Companion Loans and the provisions of the related
Co-Lender Agreement, the provisions of the Co-Lender Agreements (which may not
be amended without the consent of the related Master Servicer or the related
Special Servicer, as applicable, acting on behalf of the Trust as holder of the
related Senior Mortgage Loan in accordance with this Agreement) shall control;
provided that in no event shall the applicable Master Servicer of the applicable
Special Servicer take any action or omit to take any action in accordance with
the terms of any Co-Lender Agreement that would cause such Master Servicer or
such Special Servicer, as the case may be, to violate the Servicing Standard or
REMIC Provisions.
Section 8.4 Primary Servicing and Sub-Servicing
(a) The parties hereto (A) acknowledge that each of the Capmark
Master Servicer and the Xxxxx Fargo Master Servicer has delegated certain of its
obligations and assigned certain of its rights under this Agreement to each of
the related Primary Servicers pursuant to the respective Primary Servicing
Agreements and (B) agree: (1) in addition to those obligations specifically
delegated by the related Master Servicer to the Primary Servicers under the
applicable Primary Servicing Agreement, each Primary Servicer shall also perform
the related Master Servicer's obligations set forth in Section 2.1(d) of this
Agreement as such Section relates to the Mortgage Loans serviced by it; (2) in
addition to those rights specifically granted by the related Master Servicer to
the Primary Servicers under the applicable Primary Servicing Agreement, those
rights set forth in Section 8.24 hereof accruing to the benefit of the related
Master Servicer shall also accrue to the benefit of the Primary Servicers (or
Sub-Servicers engaged by the applicable Master Servicer or Primary Servicer);
(3) any indemnification or release from liability set forth in this Agreement
accruing to the benefit of the related Master Servicer shall also, to the extent
applicable, benefit the Primary Servicers (or Sub-Servicers engaged by the
applicable Master Servicer or Primary Servicer); and (4) for each notice,
certification, report, schedule, statement or other type of writing that a party
hereto is obligated to deliver to the related Master Servicer in respect of
Mortgage Loans for which a Primary Servicer has been engaged, such party shall
deliver to each of the applicable Primary Servicers a copy of such notice,
certification, report, schedule, statement or other type of writing at the time
and in the same manner that any of the foregoing is required to be delivered to
the related Master Servicer.
Notwithstanding the provisions of any Primary Servicing Agreement,
the Sub-Servicing Agreement or any other provisions of this Agreement, the
Master Servicers shall remain obligated and liable to the Trustee, the Paying
Agent, the Special Servicers, the Certificateholders and the holder of each
Serviced Companion Loan for servicing and administering of the Mortgage Loans
and each Serviced Companion Loan in accordance with the provisions of this
Agreement to the same extent as if the applicable Master Servicer was alone
servicing and administering the Mortgage Loans and each Serviced Companion Loan;
provided, however, the foregoing shall not in any way limit or impair the
indemnification provisions benefiting the Master Servicers in Section 8.25; and
further provided, however, for the avoidance of doubt, such "servicing and
administration" shall not be construed to include reporting under or for
purposes of compliance with Regulation AB. Each Master Servicer or applicable
Primary Servicer shall supervise, administer, monitor, enforce and oversee the
servicing of the applicable Mortgage Loans (or Serviced Companion Loan) by any
Sub-Servicer appointed by it. Other than with respect to the agreements with the
Primary Servicers or the Sub-Servicers under agreements that are in effect as of
the Closing Date, the terms of any arrangement or agreement between the Master
Servicer or applicable Primary Servicer, on the one hand, and a Sub-Servicer, on
the other, shall provide that such sub-servicing agreement or arrangement may be
terminated, without cause and without the payment of any termination fees, by
the Trustee in the event such applicable Master Servicer or the applicable
Primary Servicer is terminated in accordance with this Agreement or the
applicable Primary Servicing Agreement. In addition, none of the Special
Servicers, the Trustee, the Paying Agent, the Certificateholders or the holder
of a Serviced Companion Loan shall have any direct obligation or liability
(including, without limitation, indemnification obligations) with respect to any
Sub-Servicer. The applicable Master Servicer or applicable Primary Servicer
shall pay the costs of enforcement against any of its Sub-Servicers at its own
expense, but shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement only to the extent that such recovery exceeds
all amounts due in respect of the related Mortgage Loans or (ii) from a specific
recovery of costs, expenses or attorneys fees against the party against whom
such enforcement is directed. Notwithstanding the provisions of any Primary
Servicing Agreement or any sub-servicing agreement, any of the provisions of
this Agreement relating to agreements or arrangements between a Master Servicer,
a Primary Servicer or a Sub-Servicer, or reference to actions taken through a
Sub-Servicer or otherwise, the applicable Master Servicer, or applicable Primary
Servicer shall remain obligated and liable to the Trustee, the Paying Agent, the
applicable Special Servicer and the Certificateholders for the servicing and
administering of the applicable Mortgage Loans and Serviced Companion Loans in
accordance with (and subject to the limitations contained within) the provisions
of this Agreement or the applicable Primary Servicing Agreement without
diminution of such obligation or liability by virtue of indemnification from a
Sub-Servicer and to the same extent and under the same terms and conditions as
if the applicable Master Servicer or applicable Primary Servicer alone were
servicing and administering the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master
Servicers or any Primary Servicer may appoint one or more sub-servicers (each, a
"Sub-Servicer") to perform all or any portion of its duties hereunder for the
benefit of the Trustee and the Certificateholders, provided, however, that any
decision or recommendation involving the exercise of a Primary Servicer's
discretion as a "lender" under any loan document with respect to a Mortgage Loan
shall be exercised only by the Primary Servicer and may not be delegated to a
Sub-Servicer; provided, further, however, that no Master Servicer, Special
Servicer or Primary Servicer shall enter into a sub-servicing agreement with any
party that is a Prohibited Party.
The related Master Servicer shall enter into a Primary Servicing
Agreement with each Primary Servicer and shall not terminate such agreement
except in accordance with the terms thereof. To the extent consistent with the
rights of a Primary Servicer under this Agreement and the related Primary
Servicing Agreement, but not in limitation of any other rights granted to a
Primary Servicer in this Agreement and/or in the Primary Servicing Agreement,
such Primary Servicer shall have all of the rights and obligations of a
Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to
the contrary, (i) each Primary Servicer's and each Sub-Servicer's rights and
obligations under its respective Primary Servicing Agreement or Sub-Servicing
Agreement shall expressly survive a termination of the applicable Master
Servicer's servicing rights under this Agreement; provided that the applicable
Primary Servicing Agreement or Sub-Servicing Agreement has not been terminated
in accordance with its provisions, (ii) any successor Master Servicer,
including, without limitation, the Trustee (if it assumes the servicing
obligations of the terminated Master Servicer) shall be deemed to automatically
assume and agree to each of the then current Primary Servicing Agreements or
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer, and (iii) this Agreement may not be modified in any manner
which would increase the obligations or limit the rights of any Primary Servicer
or any Sub-Servicer hereunder and/or under the applicable Primary Servicing
Agreement or the Sub-Servicing Agreement, without the prior written consent of
such Primary Servicer or the Sub-Servicer (which consent shall not be
unreasonably withheld).
If a task, right or obligation of the related Master Servicer is
delegated to a Primary Servicer under a Primary Servicing Agreement, and such
task, right or obligation involves or requires the consent of the related
Special Servicer, then such Special Servicer shall accept the performance of
such task, right or obligation by such Primary Servicer in accordance with the
terms of this Agreement (including without limitation any time periods for
consent or deemed consent to be observed by such Special Servicer) as if the
related Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that each Special Servicer, in such capacity, is
neither a party to any Primary Servicing Agreement or Sub-Servicing Agreement,
nor is bound by any provision of any Primary Servicing Agreement or the
Sub-Servicing Agreement in its capacity as Special Servicer.
Notwithstanding anything herein to the contrary, any sub-servicing
agreement with a Sub-Servicer (including the Primary Servicing Agreements and
the Sub-Servicing Agreements) shall provide that (i) the failure of the related
Sub-Servicer to comply with any of the requirements of Article XIII of this
Agreement and (ii) for so long as the applicable Master Servicer is required to
provide Exchange Act reporting items under the terms of this Agreement, the
failure of the related Sub-Servicer to comply with any requirements to deliver
any items required by Items 1122 and 1123 of Regulation AB (while such reporting
is required under Regulation AB) under any other pooling and servicing agreement
relating to any transaction similar to the Subject Securitization Transaction
shall constitute an event of default by such Sub-Servicer upon the occurrence of
which either the applicable Master Servicer or the applicable Special Servicer
or the Depositor shall immediately terminate the related Sub-Servicer under the
related sub-servicing agreement and that such termination shall be deemed for
cause.
Section 8.5 Servicers May Own Certificates
Any Master Servicer and any Primary Servicer and any agent of the
Master Servicers or Primary Servicers in its individual or any other capacity
may become the owner or pledgee of Certificates with the same rights it would
have if it were not such Master Servicer, such Primary Servicer or such agent.
Any such interest of any Master Servicer or any Primary Servicer or such agent
in the Certificates shall not be taken into account when evaluating whether
actions of such Master Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by such
Master Servicer.
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and
Taxes
Subject to the limitations set forth below, each Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgaged Property (other than any REO
Property) to the extent required by the related Mortgage (A) a Standard Hazard
Insurance Policy which does not provide for reduction due to depreciation in an
amount that is at least equal to the lesser of (i) the full replacement cost of
improvements securing such Mortgage Loan or (ii) the outstanding Principal
Balance of such Mortgage Loan (and, with respect to a Serviced Loan Group, the
related Serviced Companion Loan) but, in any event, unless otherwise specified
in the applicable Mortgage or Mortgage Note, in an amount sufficient to avoid
the application of any co insurance clause, (B) any terrorism insurance coverage
for a Mortgage Loan, which the related Mortgagor is required to maintain under
the related Mortgage, to the extent that such insurance is available at a
commercially reasonable rate and (C) any other insurance coverage for a Mortgage
Loan which the related Mortgagor is required to maintain under the related
Mortgage; provided the applicable Master Servicer shall not be required to
maintain earthquake insurance on any Mortgaged Property required by the related
Mortgage unless such insurance was required at origination and is available at a
commercially reasonable rate; provided, however, that the applicable Special
Servicer shall have the right, but not the duty, to obtain, at the Trust's
expense, earthquake insurance on any Mortgaged Property securing a Specially
Serviced Mortgage Loan or an REO Property so long as such insurance is available
at a commercially reasonable rate; provided, further, that a determination by a
Master Servicer that terrorism insurance is not available at a commercially
reasonable rate shall be subject to the approval of the applicable Special
Servicer as set forth below; provided, further, that in determining what
insurance the Mortgagor is required to maintain, the applicable Master Servicer
shall take into account the insurance maintained on the closing date of the
Mortgage Loan. If the related Mortgagor does not maintain the insurance set
forth in clauses (A), (B) and (C) above, then the applicable Master Servicer
shall cause to be maintained such insurance with a Qualified Insurer and the
payment of the cost of such insurance shall be a Servicing Advance; provided,
that a determination by a Master Servicer (with respect to non-Specially
Serviced Mortgage Loans) that terrorism insurance is not available at a
commercially reasonable rate will be subject to the approval of the applicable
Special Servicer as set forth below. Concurrently with its making such
determination, such Master Servicer shall forward to the applicable Special
Servicer all information used to make such determination. Upon a Master
Servicer's determination that terrorism insurance is not available at a
commercially reasonable rate, such Master Servicer shall notify the applicable
Special Servicer. Such Special Servicer shall have seven calendar days after
such notice to approve or disapprove such determination. The failure of the
applicable Special Servicer to provide notice of such approval or disapproval in
such time period shall be deemed approval. If such Special Servicer provides
such notice of disapproval within such time period, such Master Servicer shall
obtain such insurance coverage.
To the extent required by the related Mortgage Loan documents, each
Standard Hazard Insurance Policy maintained with respect to any Mortgaged
Property that is not an REO Property shall contain, or have an accompanying
endorsement that contains, a standard mortgagee clause. If, on the date of
origination, the improvements on the Mortgaged Property are located in a
designated special flood hazard area by the Federal Emergency Management Agency
in the Federal Register, as amended from time to time (to the extent permitted
under the related Mortgage Loan or as required by law), the applicable Master
Servicer (with respect to any Mortgaged Property that is not an REO Property)
shall cause flood insurance to be maintained. To the extent required by the
related Mortgage Loan documents, such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan or (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program, if the area in
which the improvements on the Mortgaged Property are located is participating in
such program. Any amounts collected by the applicable Master Servicer under any
such policies (other than amounts to be applied to the restoration or repair of
the related Mortgaged Property or property thus acquired or amounts released to
the Mortgagor in accordance with the terms of the applicable Mortgage Loan)
shall be deposited in the applicable Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but
not internal costs and expenses of obtaining such insurance) incurred by a
Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Paying Agent for their benefit, be
added to the Principal Balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan permit such cost to be added to the outstanding
Principal Balance thereof. Such costs shall be paid as a Servicing Advance by
such Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, a Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, a Master Servicer
shall not be required in any event to maintain or obtain insurance coverage to
the extent the Trustee as mortgagee does not have an insurable interest or
beyond what is reasonably available at a commercially reasonable rate and
consistent with the Servicing Standard. Each Master Servicer shall notify the
Trustee in the event it makes such determination. Notwithstanding the foregoing,
such determination shall be subject to the approval of the applicable Special
Servicer with respect to terrorism insurance, as set forth in the first
paragraph of this Section 8.6 and, with respect to the Serviced Loan Groups, the
related Co-Lender Agreement. In addition, each Master Servicer shall be entitled
to rely at its own expense on insurance consultants in connection with any such
determination. In no event shall the Master Servicer be required to obtain any
insurance coverage that would require a Servicing Advance that constitutes a
Nonrecoverable Advance.
Each Master Servicer shall conclusively be deemed to have satisfied
its obligations as set forth in this Section 8.6 either (i) if such Master
Servicer shall have obtained and maintained a master force placed or blanket
insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans (and the Serviced Companion Loans, as applicable), it being
understood and agreed that such policy may contain a deductible clause on terms
substantially equivalent to those commercially available and maintained by
comparable servicers consistent with the Servicing Standard, and provided that
such policy is issued by a Qualified Insurer or (ii) if such Master Servicer,
provided that its or its parent's long-term rating is not less than "A" by S&P,
"A" by Fitch and "A" by DBRS (or, if not rated by DBRS, (a) an equivalent rating
(such as those listed above for Fitch and S&P) by at least two nationally
recognized statistical rating organizations (which may include S&P, Fitch and/or
Xxxxx'x) or (b) at least A:IX by A.M. Best's Key Rating Guide), self-insures for
its obligations as set forth in the first paragraph of this Section 8.6. In the
event that a Master Servicer shall cause any Mortgage Loan to be covered by such
a master force placed or blanket insurance policy, the incremental cost of such
insurance allocable to such Mortgage Loan (i.e., other than any minimum or
standby premium payable for such policy whether or not any Mortgage Loan is then
covered thereby), if not borne by the related Mortgagor, shall be paid by such
Master Servicer as a Servicing Advance. If such policy contains a deductible
clause, the applicable Master Servicer shall, if there shall not have been
maintained on the related Mortgaged Property a policy complying with this
Section 8.6 and there shall have been a loss that would have been covered by
such policy, deposit in the applicable Certificate Account the amount not
otherwise payable under such master force placed or blanket insurance policy
because of such deductible clause to the extent that such deductible exceeds (i)
the deductible under the related Mortgage Loan or (ii) if there is no deductible
limitation required under the Mortgage Loan, the deductible amount with respect
to insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans (and each Serviced Companion Loan, as applicable), the applicable
Master Servicer agrees to present, on its behalf and on behalf of the Trustee
(and the holder of each Serviced Companion Loan, as applicable), claims under
any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the applicable Master Servicer
shall maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the applicable Master
Servicer (other than with respect to REO Mortgage Loans) shall, except in the
case of Mortgage Loans under which Escrow Amounts are not held by the applicable
Master Servicer (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) effect payment of all such bills, taxes and other
assessments with respect to such Mortgaged Properties prior to the applicable
penalty or termination date, in each case employing for such purpose Escrow
Amounts as allowed under the terms of the related Mortgage Loan. If a Mortgagor
fails to make any such payment on a timely basis or collections from the
Mortgagor are insufficient to pay any such item before the applicable penalty or
termination date, the applicable Master Servicer in accordance with the
Servicing Standard shall use its reasonable efforts to pay as a Servicing
Advance the amount necessary to effect the payment of any such item prior to
such penalty or termination date (or, with respect to real estate taxes, prior
to the earlier of the imposition of late tax payment penalty charges or the
notice of intent to create a tax lien on the Mortgaged Property), subject to
Section 4.4 hereof. No costs incurred by the Master Servicers or the Trustee, as
the case may be, in effecting the payment of taxes and assessments on the
Mortgaged Properties and related insurance premiums and ground rents shall, for
the purpose of calculating distributions to Certificateholders, be added to the
Principal Balance of the Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans permit such costs to be added to the outstanding principal
balances of such Mortgage Loans.
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause
(a) In the event a Master Servicer (or, with respect to Mortgage
Loans serviced pursuant to a Primary Servicing Agreement, a Primary Servicer)
receives a request from a Mortgagor pursuant to the provisions of any Mortgage
Loan (other than a Specially Serviced Mortgage Loan) that expressly permits,
subject to any conditions set forth in the Mortgage Loan documents, the
assignment of the related Mortgaged Property to, and assumption of such Mortgage
Loan by, another Person, the Master Servicer (or, if applicable, the related
Primary Servicer, who shall send a copy of such request to the applicable Master
Servicer within 5 Business Days of receipt thereof by such Primary Servicer)
shall obtain relevant information for purposes of evaluating such request and
the applicable Special Servicer shall not have an obligation to review or
consent to such request. For the purpose of the foregoing sentence, the term
"expressly permits" shall include outright permission to assign, permission to
assign upon satisfaction of certain conditions or prohibition against assignment
except upon the satisfaction of stated conditions. With respect to each Mortgage
Loan that does not "expressly permit" an assignment or assumption, if the
applicable Master Servicer (or, if such Mortgage Loan is serviced by a Primary
Servicer, the Primary Servicer) recommends to approve such assignment, such
Master Servicer shall provide to the applicable Special Servicer (which shall
forward the same to the Operating Adviser) (or, with respect to a recommendation
by the Primary Servicer, to the applicable Master Servicer and the applicable
Special Servicer (which shall forward to and coordinate with the Operating
Adviser), simultaneously) a copy of such recommendation and the materials upon
which such recommendation is based (which information shall consist of the
information to be included in the Assignment and Assumption Submission to the
applicable Special Servicer, in the form attached hereto as Exhibit U) and all
other information related to such assignment and assumption in its possession
reasonably requested by the applicable Special Servicer and (A) the applicable
Special Servicer shall have the right hereunder to grant or withhold consent to
any such request for such assignment and assumption in accordance with the terms
of the Mortgage Loan and this Agreement, and such Special Servicer shall not
unreasonably withhold such consent and any such decision of such Special
Servicer shall be in accordance with the Servicing Standard, (B) failure of the
applicable Special Servicer to notify the applicable Master Servicer in writing
within five Business Days following such Master Servicer's or the applicable
Primary Servicer's delivery of the recommendation described above and the
Assignment and Assumption Submission to such Special Servicer on which the
recommendation is based, of its determination to grant or withhold such consent
shall be deemed to constitute a decision to grant or withhold such consent in
accordance with the recommendation of such Master Servicer; provided, that, if
the applicable Special Servicer reasonably requests additional information from
the Master Servicer or Primary Servicer, as applicable, on which to base its
decision, the foregoing five Business Day period in which such Special Servicer
has to consent to the Assignment and Assumption Submission shall cease to run on
the Business Day on which such Special Servicer makes such request and shall
continue to run (without starting over) on the Business Day on which such
Special Servicer receives such additional information, and (C) the applicable
Master Servicer or Primary Servicer shall not permit any such assignment or
assumption unless it has received the written consent of the applicable Special
Servicer (which shall be deemed to include the consent of the applicable
Operating Advisor) or such consent has been deemed to have been granted as
described in the preceding clause (B). Each Special Servicer hereby acknowledges
the delegation by the applicable Master Servicer of its rights and duties
hereunder pursuant to the provisions of each Primary Servicing Agreement. If a
Special Servicer withholds consent pursuant to the provisions of this Agreement,
it shall provide the applicable Master Servicer or any applicable Primary
Servicer with a written statement and a verbal explanation as to its reasoning
and analysis within the time frame specified in (B) of the preceding sentence.
Upon consent or deemed consent by the applicable Special Servicer to such
proposed assignment and assumption, the applicable Master Servicer or Primary
Servicer, as applicable, shall process such request of the related Mortgagor and
shall be authorized to enter into an assignment and assumption or substitution
agreement with the Person to whom the related Mortgaged Property has been or is
proposed to be conveyed, and/or release the original Mortgagor from liability
under the related Mortgage Loan and substitute as obligor thereunder the Person
to whom the related Mortgaged Property has been or is proposed to be conveyed;
provided, however, that such Master Servicer shall not enter into any such
agreement to the extent that any terms thereof would result in an Adverse REMIC
Event or create any lien on a Mortgaged Property that is senior to, or on parity
with, the lien of the related Mortgage. In the event that the applicable Master
Servicer shall require a Nondisqualification Opinion in order to process a
request for a substitution, such Master Servicer shall use its reasonable
efforts in accordance with the Servicing Standard to collect the related costs,
expenses and fees from the Mortgagor to the extent the related Mortgage Loan
documents require the related Mortgagor to pay such amounts. To the extent
permitted by applicable law, a Master Servicer shall not enter into such an
assumption or substitution agreement unless the credit status of the prospective
new Mortgagor is in conformity to the terms of the related Mortgage Loan. In
making its recommendation, each Master Servicer shall evaluate such conformity
in accordance with the Servicing Standard. A Master Servicer shall not condition
approval of any request for assumption of a Mortgage Loan on an increase in the
interest rate of such Mortgage Loan. The applicable Master Servicer shall notify
the Trustee, the Paying Agent (it being understood that such notice to the
Paying Agent is deemed sent by receipt of the related monthly CMSA Reports, with
no separate notice required for the Paying Agent) and the applicable Special
Servicer (which shall, in turn, notify the Operating Adviser) of any assignment
and assumption or substitution agreement executed pursuant to this Section
8.7(a). The applicable Master Servicer shall be entitled to (as additional
servicing compensation) 50% of any assumption fee collected from a Mortgagor in
connection with an assignment and assumption or substitution of a non-Specially
Serviced Mortgage Loan (except that the Master Servicer shall be entitled to
100% of such fee in connection with (a) any assignment and assumption or
substitution with respect to which the consent of the applicable Special
Servicer was not required (and 100% of assumption application fees) or (b) any
assignment and assumption or substitution that is "expressly permitted" pursuant
to the terms of the related Mortgage Loan), as executed pursuant to this Section
8.7(a) and the applicable Special Servicer shall be entitled to (as additional
special servicing compensation) the other 50% of such assumption fee relating to
the non-Specially Serviced Mortgage Loans (except with respect to the Mortgage
Loans with respect to which such Special Servicer's consent was not required in
connection therewith or with respect to any assignment and assumption or
substitution that is not "expressly permitted" pursuant to the terms of the
related Mortgage Loan); provided that any such fees payable to a Master Servicer
pursuant to this paragraph shall be divided between the Master Servicer and any
related Primary Servicer as set forth in the applicable Primary Servicing
Agreement.
The applicable Special Servicer acknowledges that the Capmark Master
Servicer has delegated certain tasks, rights and obligations to the Primary
Servicer of the PCFII Loans and with respect to Post-Closing Requests (as
defined in the applicable Primary Servicing Agreements) pursuant to Section 8.4
of this Agreement. Such Primary Servicing Agreement classifies certain
Post-Closing Requests as Category 1 Requests (as defined in the Primary
Servicing Agreement), and grant the Primary Servicer certain authority to
evaluate and process such requests in accordance with this Agreement, the
Primary Servicing Agreement and the applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or approval of
the applicable Mortgagee under the Mortgage Loan documents, the Primary
Servicing Agreement for the PCFII Loans provide for the Capmark Master
Servicer's (or, with respect to the PCFII Loans, the Primary Servicer's)
determination of materiality of such condition, term or provision requiring
approval or consent and the referral of such condition, term or provision to the
applicable Special Servicer for consent in accordance with the terms of the
Primary Servicing Agreements upon a determination of materiality. The applicable
Special Servicer hereby acknowledges such provisions. Nothing in this Agreement,
however, shall grant the Primary Servicer for the PCFII Loans greater authority,
discretion or delegated rights over Post-Closing Requests than are set forth in
the Primary Servicing Agreement.
In addition, the applicable Special Servicer acknowledges that the
Capmark Master Servicer has delegated certain tasks, rights and obligations to
the Primary Servicer of the PCFII Loans with respect to enforcement of
due-on-sale clauses, assumption agreements and due-on-encumbrance clauses
pursuant to Section 8.4 of this Agreement. Such Primary Servicing Agreement
grants the Primary Servicer certain authority to evaluate and process certain
requests with respect thereto in accordance with this Agreement or the Primary
Servicing Agreement and the applicable Mortgage Loan documents; provided,
however, that such evaluation or processing shall be conducted in accordance
with the Primary Servicing Agreement and nothing in this Agreement shall give
the Primary Servicer greater authority, discretion or delegated rights over
Post-Closing Requests than set forth in the Primary Servicing Agreement, such
authority to evaluate and process certain requests shall be in contravention of
the immediately preceding paragraph. Such Primary Servicer is not required to
obtain the consent of the Capmark Master Servicer with respect to requests for
transfers that are expressly permitted pursuant to the applicable Mortgage Loan
documents. With respect to other requests specified in the related Primary
Servicing Agreement that require the approval of a Special Servicer and subject
to the terms and provisions of the Primary Servicing Agreement, the Primary
Servicer may forward its recommendation directly to the applicable Special
Servicer (with a copy to the Capmark Master Servicer) or it may forward its
recommendation with respect to such request to the Capmark Master Servicer. The
Capmark Master Servicer shall use commercially reasonable efforts to forward
such recommendation to the applicable Special Servicer within five (5) Business
Days of receipt thereof (but in no event more than 10 days of receipt thereof)
after which such Special Servicer shall inform the Capmark Master Servicer and
the applicable Primary Servicer of its decision on or prior to the date on which
such Special Servicer's time to respond has lapsed as set forth in the Primary
Servicing Agreement.
(b) [Reserved]
(c) None of the Master Servicers, any Primary Servicer or the
Special Servicers shall have any liability, and shall be indemnified by the
Trust for any liability to the Mortgagor or the proposed assignee, for any delay
in responding to requests for assumption, if the same shall occur as a result of
the failure of the Rating Agencies, or any of them, to respond to such request
in a reasonable period of time.
(d) If any Mortgage Loan that is not a Specially Serviced Mortgage
Loan contains a provision in the nature of a "due-on-sale" clause, which by its
terms (i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an interest in
the related Mortgaged Property or ownership interest in the related Mortgagor,
or (ii) provides that such Mortgage Loan may not be assumed or ownership
interests in the related Mortgagor may not be transferred without the consent of
the related mortgagee in connection with any such sale or other transfer, then,
the applicable Master Servicer's (or Primary Servicer's) review and
determination (such determination to be approved by the applicable Special
Servicer in the same manner as in Section 8.7(a)) to either (A) enforce such
due-on-sale clause or (B) if in the best economic interest of the Trust, waive
the effect of such provision, shall be processed in the same manner as in
Section 8.7(a); provided, however, that if the Principal Balance of such
Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) at such time equals or exceeds 5% of the Aggregate
Certificate Balance or exceeds $35,000,000 or is one of the then current top 10
loans (by Principal Balance) in the pool, then prior to waiving the effect of
such provision, the Master Servicer shall obtain Rating Agency Confirmation
regarding such waiver. In connection with the request for such consent, the
Master Servicer shall prepare and deliver to Fitch and S&P a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The applicable
Master Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the applicable Special Servicer, the
Paying Agent and the Trustee, and such Master Servicer shall promptly thereafter
forward such documents to the Rating Agencies. The applicable Special Servicer
and the applicable Master Servicer shall each be entitled to (as additional
compensation) 50% of the assumption fee and 50% (or, with respect to the NCB,
FSB Loans, 100% of assumption application fees with respect to a non-Specially
Serviced Mortgage Loan, shall be payable to the NCB Master Servicer) of
assumption application fees (in each case, to the extent that (a) the consent of
such Special Servicer is required or (b) assumption is not "expressly permitted"
pursuant to the terms of the related Mortgage Loan, otherwise such Master
Servicer shall be entitled to 100% of the assumption fee and 100% of the
assumption application fee) collected from a Mortgagor in connection with the
granting or withholding such consent with respect to Mortgage Loans that are not
Specially Serviced Mortgage Loans; provided, that such fees that are allocated
to a Master Servicer pursuant hereto shall be divided between the Master
Servicer and any applicable Primary Servicer as set forth in the related Primary
Servicing Agreement.
(e) Each Master Servicer, as applicable, shall have the right to
consent to any transfers of an interest in a Mortgagor of a Mortgage Loan that
is not a Specially Serviced Mortgage Loan, to the extent such transfer is to a
party or entity specifically named or described under the terms of the related
Mortgage Loan, and the NCB Master Servicer shall be permitted to consent to any
transfer of an interest in a Mortgagor under a Co-op Mortgage Loan in connection
with a transfer of cooperative units therein to the extent such consent is
required under the terms of the related Mortgage Loan, in each case including
any consent to transfer to any subsidiary or Affiliate of Mortgagor, to a Person
acquiring less than a majority interest in the Mortgagor or to an entity of
which the Mortgagor is the controlling beneficial owner; provided, however, that
if (i) the Principal Balance of such Mortgage Loan (together with any other
Mortgage Loan with which it is cross-collateralized) at such time equals or
exceeds 5% of the Aggregate Certificate Balance or is one of the then current
top 10 loans (by Principal Balance) in the pool (provided that such Mortgage
Loan has a then current Principal Balance of $5,000,000 or more), and (ii) the
transfer is of an equity interest in the Mortgagor greater than 49%, then prior
to consenting, the Master Servicer shall obtain a Rating Agency Confirmation
regarding such consent, the costs of which to be payable by the related
Mortgagor to the extent provided for in the Mortgage Loan documents. The Master
Servicer, as applicable, shall be entitled to collect and receive from
Mortgagors any customary fees in connection with such transfers of interest as
additional servicing compensation to the extent the Master Servicer's collection
of such fees is not expressly prohibited under the related loan documents for
the Mortgage Loan.
(f) The Trustee for the benefit of the Certificateholders shall
execute any necessary instruments in the form presented to it by the applicable
Master Servicer (pursuant to subsection (a) or (d)) for such assignments and
assumptions agreements. Upon the closing of the transactions contemplated by
such documents, such Master Servicer shall cause the originals of the assignment
and assumption agreement, the release (if any), or the modification or
supplement to the Mortgage Loan to be delivered to the Trustee or Custodian, as
applicable, except to the extent such documents have been submitted to the
recording office, in which event such Master Servicer shall promptly deliver
copies of such documents to the Trustee, the Custodian and the applicable
Special Servicer.
(g) If any Mortgage Loan (other than a Co-op Mortgage Loan as to
which the NCB, FSB Subordinate Debt Conditions have been satisfied) which
contains a provision in the nature of a "due-on-encumbrance" clause, which by
its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or
a lien on the ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise
(or, subject to Section 8.18, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, sub-section (h)
below and Section 8.18 hereof. The Master Servicer shall not waive the effect of
such provision without first obtaining Rating Agency Confirmation regarding such
waiver and complying with the provisions of the next succeeding paragraph;
provided, however, that such Rating Agency Confirmation shall only be required
if the applicable Mortgage Loan (x) represents 2% or more of the Principal
Balance of all of the Mortgage Loans held by the Trust or is one of the 10
largest Mortgage Loans based on Principal Balance or (y) has a Loan-to-Value
Ratio (including existing and proposed Junior Indebtedness, if any) that is
greater than or equal to 85% and a Debt Service Coverage Ratio (which includes
debt service on any existing and proposed Junior Indebtedness) that is less than
1.2x.
(h) Without limiting the generality of the preceding paragraph, in
the event that a Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause under any Mortgage Loan (other than a Co-op Mortgage
Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied),
such Master Servicer shall obtain relevant information for purposes of
evaluating such request for a waiver. If a Master Servicer recommends to waive
such clause, such Master Servicer shall provide to the applicable Special
Servicer a copy of such recommendation and the materials upon which such
recommendation is based (which information shall consist of the information to
be included in the Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package to the applicable Special Servicer, in the form attached
hereto as Exhibit V and any other information in its possession reasonably
requested by such Special Servicer) and (A) the applicable Special Servicer
shall have the right hereunder to grant or withhold consent to any such request
in accordance with the terms of the Mortgage Loan and this Agreement, and such
Special Servicer shall not unreasonably withhold such consent and any such
decision of such Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the Special Servicer to notify the applicable Master
Servicer in writing, within ten Business Days following such Master Servicer's
delivery of the recommendation described above and the complete Additional Lien,
Monetary Encumbrance and Mezzanine Financing Submission Package and any other
information in its possession reasonably requested by the applicable Special
Servicer to such Special Servicer on which the recommendation is based, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the applicable Master Servicer shall not permit
any such waiver unless it has received the written consent of the applicable
Special Servicer or such consent has been deemed to have been granted as
described in the preceding sentence. If a Special Servicer withholds consent
pursuant to the foregoing provisions, it shall provide the applicable Master
Servicer with a written statement and a verbal explanation as to its reasoning
and analysis. Upon consent or deemed consent by a Special Servicer to such
proposed waiver, the applicable Master Servicer shall process such request of
the related Mortgagor subject to the other requirements set forth above.
(i) The parties hereto acknowledge that, if a Seller shall have
breached the representation set forth under the heading "Defeasance and
Assumption Costs" in Exhibit 2 to the Mortgage Loan Purchase Agreements,
regarding the obligation of a Mortgagor to pay the reasonable costs and expenses
of obtaining any Rating Agency Confirmation in connection with an assumption or
defeasance of the related Mortgage Loan because the related mortgage loan
documents do not require the Mortgagor to pay costs related thereto, then it
shall be the sole obligation of the related Seller to pay an amount equal to
such insufficiency to the extent the related Mortgagor is not required to pay
such amount. Promptly upon receipt of notice of such insufficiency, the
applicable Master Servicer or the applicable Special Servicer, as applicable,
shall request the related Seller to make such payment by deposit to the
applicable Certificate Account. The Master Servicer may not waive such payment
by the Mortgagor (and then seek payment for such costs and expenses from the
Seller) and shall use its reasonable efforts to collect such amounts from the
Mortgagor to the extent the related mortgage loan documents require the related
Mortgagor to pay such amounts.
(j) Notwithstanding the foregoing, and regardless of whether a
particular Co-op Mortgage Loan contains specific provisions regarding the
incurrence of subordinate debt, or prohibits the incurrence of subordinate debt,
or requires the consent of the Mortgagee in order to incur subordinate debt, the
NCB Master Servicer may, nevertheless, in accordance with the Servicing
Standard, without the need to obtain any consent hereunder (and without the need
to obtain a Rating Agency Confirmation), permit the related Mortgagee to incur
subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met (as
certified in writing to the Trustee, the Paying Agent and the Operating Advisor
by the NCB Master Servicer no later than five Business Days prior to the making
of the subject subordinate loan without right of reimbursement from the Trust)
which certification shall include notice of the circumstances of the waiver,
including information necessary for the Operating Advisor to determine whether
the NCB, FSB Subordinate Debt Conditions have been satisfied; provided, that,
subject to the related Mortgage Loan documents and applicable law, the NCB
Master Servicer shall not waive any right it has, or grant any consent it is
otherwise entitled to withhold, in accordance with any related
"due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraph,
unless in any such case, all associated costs and expenses are covered without
any expense to the Trust.
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files
Upon the payment in full of any Mortgage Loan, the complete
defeasance of a Mortgage Loan, satisfaction or discharge in full of any
Specially Serviced Mortgage Loan, the purchase of a Senior Loan by the holder of
a related Serviced Companion Loan or the receipt by a Master Servicer of a
notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be escrowed in a manner customary for such purposes, and upon notification
by the applicable Master Servicer in the form of a certification (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the applicable Certificate Account have been or will be so
deposited) of a Servicing Officer and a request for release of the Custodian
Mortgage File in the form of Exhibit C hereto the Custodian shall promptly
release the related Custodian Mortgage File to the applicable Master Servicer
and the Trustee shall execute and deliver to such Master Servicer the deed of
reconveyance or release, satisfaction or assignment of mortgage or such
instrument releasing the lien of the Mortgage, as directed by such Master
Servicer together with the Mortgage Note. The provisions of the immediately
preceding sentence shall not, in any manner, limit or impair the right of the
Master Servicers to execute and deliver, on behalf of the Trustee, the
Certificateholders, the holders of the Serviced Companion Loans or any of them,
any and all instruments of satisfaction, cancellation or assignment without
recourse, representation or warranty, or of partial or full release or discharge
and all other comparable instruments, with respect to the Mortgage Loans or the
Serviced Companion Loans, and with respect to the Mortgaged Properties held for
the benefit of the Certificateholders and the holders of the Serviced Companion
Loans. No expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be chargeable to the Distribution Account but shall
be paid by the applicable Master Servicer except to the extent that such
expenses are paid by the related Mortgagor in a manner consistent with the terms
of the related Mortgage and applicable law. From time to time and as shall be
appropriate for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond or
Errors and Omissions Policy, or for the purposes of effecting a partial or total
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Custodian Mortgage File, the Custodian shall, upon
request of the applicable Master Servicer and the delivery to the Custodian of a
Request for Release signed by a Servicing Officer, in the form of Exhibit C
hereto, release the Custodian Mortgage File to such Master Servicer or the
applicable Special Servicer, as the case may be.
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicers to Be Held for the Trustee for the Benefit of the Certificateholders
Notwithstanding any other provisions of this Agreement, each Master
Servicer shall transmit to the Custodian, to the extent required by this
Agreement, all documents and instruments coming into the possession of such
Master Servicer from time to time and shall account fully to the Trustee (and
the Custodian on its behalf) and the Paying Agent for any funds received or
otherwise collected thereby, including Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files and funds
collected or held by, or under the control of, each Master Servicer in respect
of such Mortgage Loans (or Serviced Companion Loans), whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, including any funds on deposit in the applicable Certificate
Accounts (or the Serviced Companion Loan Custodial Account), shall be held by
the applicable Master Servicer for and on behalf of the Trustee and the
Certificateholders (or the holder of a Serviced Companion Loan, as applicable)
and shall be and remain the sole and exclusive property of the Trustee, subject
to the applicable provisions of this Agreement. Each Master Servicer agrees that
it shall not create, incur or subject any Servicer Mortgage File or Custodian
Mortgage File or any funds that are deposited in the Certificate Accounts or the
applicable Escrow Accounts, or any funds that otherwise are or may become due or
payable to the Trustee or the Paying Agent, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Servicer
Mortgage File or Custodian Mortgage File or any funds collected on, or in
connection with, a Mortgage Loan, except, however, that the Master Servicers
shall be entitled to receive from any such funds any amounts that are properly
due and payable to the Master Servicers under this Agreement.
Section 8.10 Servicing Compensation
(a) As compensation for its activities hereunder, each Master
Servicer shall be entitled to the Master Servicing Fee and each of the Capmark
Master Servicer and the Xxxxx Fargo Master Servicer shall be entitled to the
related Primary Servicing Fee (except with respect to the NCB, FSB Loans), which
shall be payable by the Trust from amounts held in the applicable Certificate
Accounts (and from the Serviced Companion Loan Custodial Account, to the extent
related solely to each Serviced Companion Loan) or otherwise collected from the
Mortgage Loans (or Serviced Loan Groups, as applicable) and REO Loans as
provided in Section 5.2. Each of the Capmark Master Servicer and the Xxxxx Fargo
Master Servicer shall be required to pay to the Primary Servicers the related
Primary Servicing Fees (except with respect to the NCB, FSB Loans), which shall
be payable by the Trust from amounts as provided in Section 5.1(c), unless
retained by the related Primary Servicers from amounts transferred to the
applicable Master Servicer in accordance with the terms of the related Primary
Servicing Agreements. The Master Servicers shall be required to pay to the
holders of the rights to the Excess Servicing Fees (including, if applicable,
the applicable Master Servicer), the Excess Servicing Fees, which shall be
payable by the Trust as provided in Section 5.1(c), unless otherwise retained by
the holders of such rights. Notwithstanding anything herein to the contrary, if
any of the holders of the right to receive Excess Servicing Fees resigns or is
no longer a Master Servicer or Primary Servicer (to the extent that such Person
was ever a Master Servicer or a Primary Servicer), as applicable, for any
reason, it will continue to have the right to receive its portion of the Excess
Servicing Fee, and any of the holders of the right to receive Excess Servicing
Fees shall have the right to assign its portion of the Excess Servicing Fee,
whether or not it is then acting as a Master Servicer or Primary Servicer
hereunder. The Capmark Master Servicer and the Xxxxx Fargo Master Servicer shall
also be entitled to the related Primary Servicing Fee (except with respect to
the NCB, FSB Loans), which shall be payable by the Trust (or the holders of the
related Serviced Companion Loans, as applicable) from amounts held in the
applicable Certificate Account (or a sub-account thereof) (or the related
Serviced Companion Loan Custodial Account, as applicable) or otherwise collected
from the Mortgage Loans (or Serviced Loan Groups, as applicable) as provided in
Section 5.2, provided that the Primary Servicing Fee payable to the applicable
Master Servicer shall only be collected from the Mortgage Loans (or Serviced
Loan Groups, as applicable) and Schedule III. There shall be no Primary
Servicing Fee payable with respect to the NCB, FSB Loans.
(b) Additional servicing compensation in the form of assumption
application fees, assumption fees, defeasance fees, extension fees, servicing
fees, default interest (excluding default interest allocable to any Serviced
Companion Loan if the holder of such Serviced Companion Loan has cured the
related default pursuant to the terms of the related Co-Lender Agreement)
payable at a rate above the Mortgage Rate (net of any amount used to pay Advance
Interest, Additional Trust Fund Expenses and Special Servicing Fees relating to
the subject Mortgage Loan (or, with respect to the Senior Mortgage Loans, the
applicable Serviced Loan Group) as provided in Section 4.5), Modification Fees,
forbearance fees, Late Fees (net of any amount used to pay Advance Interest),
other usual and customary charges and fees actually received from Mortgagors and
any other fees listed in any of the Primary Servicing Agreements, all such fees
subject to allocation pursuant to such Primary Servicing Agreements, shall be
retained by the applicable Master Servicer, provided that the applicable Master
Servicer shall be entitled to receive such compensation as set forth in Section
5.2(a)(i). If the applicable Master Servicer collects any amount payable to the
applicable Special Servicer hereunder in connection with an REO Mortgage Loan or
Specially Serviced Mortgage Loan, the applicable Master Servicer shall promptly
remit such amount to the applicable Special Servicer as provided in Section 5.2.
The applicable Master Servicer shall be required to pay (in the manner otherwise
provided herein) all applicable expenses incurred by it in connection with its
servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Master Servicing
Fee payable to each Master Servicer for each monthly period relating to each
Determination Date shall be reduced by an amount equal to the Compensating
Interest (if any) relating to Mortgage Loans serviced by such Master Servicer
for such Determination Date.
(d) Each Master Servicer, as applicable, shall also be entitled to
additional servicing compensation of (i) an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to its respective Mortgage
Loans (including any Specially Serviced Loans) for each Distribution Date over
the aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date, (ii) interest or other income earned on deposits in the
applicable Certificate Account and the Distribution Account (but only to the
extent of the net investment earnings, if any, with respect to each such
account), and, (iii) to the extent not required to be paid to any Mortgagor
under applicable law, any interest or other income earned on deposits in its
respective Escrow Accounts.
Section 8.11 Master Servicer Reports; Account Statements
(a) For each Distribution Date, (i) each Master Servicer shall
deliver to the Paying Agent (and, with respect to each Serviced Companion Loan,
the applicable Master Servicer shall also deliver to the holder thereof or its
servicer) no later than 12:00 noon, New York City time on the related Report
Date, the CMSA Loan Periodic Update File for the related Mortgage Loans with
respect to such Distribution Date, and (ii) each Master Servicer shall notify
the Paying Agent as soon as reasonably possible, but no later than noon, New
York City time on the Master Servicer Remittance Date, of the amount of any
Principal Prepayments and Balloon Payments that are required to be remitted by
such Master Servicer pursuant to Section 5.2(b). The applicable Special Servicer
is required to provide, in the form required under Section 9.32, all information
relating to Specially Serviced Mortgage Loans in order for the applicable Master
Servicer to satisfy its duties in this Section 8.11 not later than one Business
Day prior to the date such Master Servicer is required to distribute any report.
The applicable Master Servicer shall have no obligation to provide such
information or reports set forth in clauses (ii) and (iii) above to the extent
that it has not received such information or reports from the applicable Special
Servicer; provided, however, that such Master Servicer shall not be relieved of
its obligation to provide other information or reports as set forth in this
Section 8.11(a). Each Master Servicer shall be entitled in good faith to rely on
and shall have no liability for information provided by third parties, including
the Special Servicers.
(b) Each Master Servicer shall notify the Trustee and the Paying
Agent on or before the Closing Date of the initial location of the applicable
Certificate Accounts and, promptly following any change in location of any
Certificate Account, the new location thereof. In addition, the applicable
Master Servicer shall notify the holder of each Serviced Companion Loan promptly
following any change in location of the Serviced Companion Loan Custodial
Account, the new location thereof.
(c) Each Master Servicer shall promptly inform the applicable
Special Servicer of the name, account number, location and other necessary
information concerning the applicable Certificate Accounts in order to permit
such Special Servicer to make deposits therein.
(d) [Reserved]
(e) Each Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the applicable
Special Servicer, the Operating Adviser and each Rating Agency, in each case
upon request by such Person and only to the extent such reports and information
are not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicers shall not have any obligation to deliver any statement,
notice or report that is then made available on such Master Servicer's website
or the Paying Agent's Website, provided that it has notified all parties
entitled to delivery of such reports, by electronic mail or other notice
provided in this Agreement, to the effect that such statements, notices or
reports shall thereafter be made available on such website from time to time.
(g) Each Master Servicer shall deliver or cause to be delivered to
the Paying Agent (and, in respect of each Serviced Companion Loan, the holder of
the related Serviced Companion Loan) the following CMSA Reports with respect to
the Mortgage Loans serviced by such Master Servicer (and, if applicable, the
related REO Properties) (and, if applicable, the related REO Properties and, to
the extent received from the related Other Master Servicer, a Non-Trust Serviced
Pari Passu Loan) providing the required information as of the related
Determination Date upon the following schedule: (i) a CMSA Comparative Financial
Status Report not later than each Report Date (not later than 12:00 noon, New
York City time), commencing in January 2008; (ii) a CMSA Operating Statement
Analysis Report, the CMSA Financial File and the CMSA NOI Adjustment Worksheet
in accordance with Section 8.14 of this Agreement; (iii) a CMSA Servicer Watch
List in accordance with and subject to the terms of Section 8.11(h) on each
Report Date (not later than 12:00 noon, New York City time), commencing in
January 2008; (iv) a CMSA Loan Setup File (with respect to the initial
Distribution Date only) not later than the Report Date (not later than 12:00
noon, New York City time) in January 2008; (v) a CMSA Loan Periodic Update File
not later than each Report Date (not later than 12:00 noon, New York City time)
commencing in December 2007 (a December 2007 report will be issued by the Master
Servicer in the format and with the content as reasonably agreed by the Master
Servicer and the Paying Agent); (vi) a CMSA Property File on each Report Date
(not later than 12:00 noon, New York City time), commencing in January 2008;
(vii) a CMSA Delinquent Loan Status Report on each Report Date (not later than
12:00 noon, New York City time), commencing in January 2008; (viii) a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report not later than
each Report Date (not later than 12:00 noon, New York City time), commencing in
January 2008; (ix) a CMSA Historical Loan Modification and Corrected Mortgage
Loan Report not later than each Report Date (not later than 12:00 noon, New York
City time), commencing in January 2008; (x) a CMSA Loan Level Reserve/LOC Report
not later than each Report Date, commencing in January 2008, (xi) a CMSA Total
Loan Report not later than each Report Date (not later than 12:00 noon, New York
City time), commencing in January 2008 and (xii) a CMSA REO Status Report on
each Report Date (not later than 12:00 noon, New York City time), commencing in
January 2008. The information that pertains to Specially Serviced Mortgage Loans
and REO Properties reflected in such reports shall be based solely upon the
reports delivered by the applicable Special Servicer to the applicable Master
Servicer in writing and on a computer readable medium reasonably acceptable to
the Master Servicers and the Special Servicers on the date and in the form
required under Section 9.32. The Master Servicers' responsibilities under this
Section 8.11(g) with respect to REO Mortgage Loans and Specially Serviced
Mortgage Loans shall be subject to the satisfaction of the Special Servicers'
obligations under Section 9.32. The reporting obligations of a Master Servicer
to the Paying Agent in connection with any Serviced Loan Group shall be
construed to refer only to such information regarding the Mortgage Loans (and
the related Mortgaged Property) and by reference to the Mortgage Loans only.
Solely with respect to a Non-Trust Serviced Pari Passu Loan, the applicable
Master Servicer's responsibilities under this Section 8.11(g) shall be subject
to the performance of the related Other Master Servicer and the related Other
Special Servicer of their respective reporting obligations to the applicable
Master Servicer under the related Other Pooling and Servicing Agreement.
(h) If a Master Servicer, in accordance with the Servicing Standard,
seeks to effect a drawing on any letter of credit or debt service reserve
account under which the Trust has rights as the holder of any Mortgage Loan for
purposes other than payment or reimbursement of amounts contemplated in and by a
reserve or escrow agreement (other than after a default under an applicable
Mortgage Loan or Serviced Companion Loan), such Master Servicer shall deliver
notice thereof to the applicable Special Servicer, the Operating Adviser, the
holder of such Serviced Companion Loan, if applicable, and the Paying Agent,
which notice shall set forth (i) the unpaid Principal Balance of such Mortgage
Loan or Serviced Companion Loan immediately before and immediately after the
drawing, and (ii) a brief description of the circumstances that in such Master
Servicer's good faith and reasonable judgment and in compliance with the
Servicing Standard will entitle such Master Servicer to make such drawing. The
applicable Special Servicer shall have five Business Days to consent to such
drawing, which consent may be communicated by facsimile transmission or e-mail
and shall not be unreasonably withheld. If the applicable Special Servicer does
not respond within such five Business Day period, consent shall be deemed to
have been given.
Section 8.12 [Reserved]
Section 8.13 [Reserved]
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties
Within 105 calendar days (or 90 days as to each Special Servicer),
or 120 days with respect to any Co-op Mortgage Loans, after the end of each of
the first three calendar quarters (in each year) for the trailing 12 months,
quarterly or year-to-date information received, commencing for the quarter
ending on March 31, 2008, each Master Servicer shall deliver to the Paying Agent
and the Operating Adviser a CMSA Operating Statement Analysis Report and a CMSA
Financial File for each Mortgaged Property in electronic format, (and in the
case of the Initial Operating Advisor, in accordance with the Centerline Naming
Convention) prepared using the normalized quarterly, year-to-date or trailing 12
month operating statements and, in the case of Mortgage Loans other than Co-op
Mortgage Loans, rent rolls received from the related Mortgagor, if any. With
respect to Specially Serviced Mortgage Loans, the applicable Master Servicer
shall include information only to the extent provided by the applicable Special
Servicer, which a CMSA Operating Statement Analysis Report and a CMSA Financial
File shall be prepared by the applicable Special Servicer and delivered to the
applicable Master Servicer within 90 days after the end of each of the first
three quarters of each year for the trailing twelve months, quarterly or
year-to-date information received and other information utilized by the
applicable Special Servicer to prepare such report or files. With respect to any
Mortgage Loan for which a Primary Servicer is appointed as the Special Servicer
with respect to such Mortgage Loan pursuant to Section 9.39, the reports
prepared by any such Special Servicer shall only include the CMSA reports and
related data required by the related Primary Servicing Agreement, and such other
reports as are mutually agreed to by the related Primary Servicer and the
applicable Master Servicer. Not later than the Report Date (not later than 12:00
noon, New York City time) occurring in June of each year, beginning in 2008 for
year-end 2007, the applicable Master Servicer (in the case of Mortgage Loans
that are not Specially Serviced Mortgage Loans and as provided by the applicable
Special Servicer to the applicable Master Servicer for Specially Serviced
Mortgage Loans) shall deliver to the Paying Agent and the Operating Adviser a
CMSA Operating Statement Analysis Report, a CMSA Financial File and a CMSA NOI
Adjustment Worksheet for each Mortgage Loan in electronic format (and in the
case of the Initial Operating Advisor, in accordance with the Centerline Naming
Convention), based on the most recently available year-end financial statements
and most recently available rent rolls, in each case of Mortgage Loans other
than Co-op Mortgage Loans, of each applicable Mortgagor (to the extent provided
to the applicable Master Servicer or the applicable Special Servicer by or on
behalf of each Mortgagor). In the case of Specially Serviced Mortgage Loans, as
provided to the applicable Special Servicer by the Mortgagor, such Special
Servicer shall forward such information to the applicable Master Servicer on or
before April 15 of each such year as provided for in Section 9.32(e) herein,
containing such information and analyses for each Mortgage Loan provided for in
the respective forms of CMSA Operating Statement Analysis Report, CMSA Financial
File and CMSA NOI Adjustment Worksheet. Such information provided by the
applicable Master Servicer shall include what would customarily be included in
accordance with the Servicing Standard including, without limitation, Debt
Service Coverage Ratios and income, subject in the case of a Non-Trust Serviced
Pari Passu Loan, to the receipt of such report from the related Other Master
Servicer or the related Other Special Servicer. The applicable Master Servicer
shall make reasonable efforts, consistent with the Servicing Standard, to obtain
such reports from the related Other Master Servicer or the related Other Special
Servicer. As and to the extent reasonably requested by the applicable Special
Servicer, the applicable Master Servicer shall make inquiry of any Mortgagor
with respect to such information or as regards the performance of the related
Mortgaged Property in general. The Paying Agent shall provide or make available
electronically at no cost to the Certificateholders or Certificate Owners, the
Rating Agencies, the Operating Adviser, the Depositor, the Placement Agent, the
Underwriters and, solely as it relates to a Serviced Loan Group, the holder of
the related Serviced Companion Loan, the CMSA Operating Statement Analysis
Reports, the CMSA Financial Files and the CMSA NOI Adjustment Worksheets
described above pursuant to Section 5.4(a). The applicable Master Servicer shall
make the CMSA Operating Statement Analysis Report, the operating statements,
rent rolls (except in the case of Co-op Mortgage Loans), property inspections
and CMSA NOI Adjustment Worksheet for each Mortgage Loan available to the
initial Operating Advisor using the Centerline Naming Convention on the Capmark
Master Servicer's website (the "Capmark Master Servicer's Website"), the Xxxxx
Fargo Master Servicer's website (the "Xxxxx Fargo Master Servicer's Website") or
the NCB Master Servicer's website (which shall initially be located at
xxx.xxx.xxxx (the "NCB Master Servicer's Website"), as applicable, by the
Business Day following the Distribution Date in December 2007. Each Master
Servicer shall, upon request by any of such parties, deliver copies of such
documents to such parties if such documents are not available on such Master
Servicer's website at such time, except that the Master Servicer shall in all
cases electronically deliver such documents and information for each Mortgage
Loan to the initial Operating Advisor using the Centerline Naming Convention as
provided herein. Pursuant to the Mortgage Loan Purchase Agreements, the Sellers
shall populate all fields or any information for their related Mortgage Loans
reasonably requested by the applicable Master Servicer to complete the Property
File.
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer
(a) Subject to paragraphs (b), (c) and (d) below, unless prohibited
by applicable law or the loan documents, the Paying Agent shall make available
at its Corporate Trust Office, during normal business hours, upon reasonable
advance written notice for review by any Certificateholder, any Certificate
Owner, any Seller, any Primary Servicer, the Placement Agent, any Underwriter,
each Rating Agency, the Paying Agent or the Depositor (and the holder of a
Serviced Companion Loan, if such notice relates to such Serviced Companion
Loan), originals or copies of, among other things, the following items: (i) this
Agreement and any amendments thereto, (ii) all final and released CMSA Operating
Statement Analysis Reports and the Loan Periodic Update Files, (iii) all
Officer's Certificates (including Officer's Certificates evidencing any
determination of Nonrecoverable Advances) delivered to the Trustee and the
Paying Agent since the Closing Date, (iv) all accountants' reports delivered to
the Trustee and the Paying Agent since the Closing Date, (v) the most recent
property Inspection Reports in the possession of the Paying Agent in respect of
each Mortgaged Property, (vi) the most recent Mortgaged Property annual
operating statement and, in the case of Mortgage Loans other than Co-op Mortgage
Loans, rent roll, if any, collected by or on behalf of the Master Servicers or
the Special Servicers, (vii) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into by the Master Servicers and/or the
Special Servicers, and (viii) any and all Officers' Certificates (and
attachments thereto) delivered to the Trustee and the Paying Agent to support a
Master Servicer's determination that any Advance was not or, if made, would not
be, recoverable. The Trustee and the Paying Agent will be permitted to require
payment of a sum to be paid by the requesting party (other than the Rating
Agencies, the Trustee, the Paying Agent, any Placement Agent or any Underwriter)
sufficient to cover the reasonable costs and expenses of making such information
available.
(b) Subject to the restrictions described below, each Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Paying Agent, the applicable Special Servicer, the Primary Servicers, the
Sellers, any Placement Agent, the Underwriters, the Operating Adviser, any
Certificateholder, any holder of a Serviced Companion Loan or any Certificate
Owner, upon reasonable notice and during normal business hours, reasonable
access to all information referred to in Section 8.15(a) and any additional
relevant, non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement (which access may occur by
means of the availability of information on the applicable Master Servicers' or
the Paying Agent's Website or the electronic delivery of such information to the
requesting Person), in each case to the extent in its respective possession, and
access to Servicing Officers of the applicable Master Servicers responsible for
its obligations hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory evidence of
ownership of Certificates or beneficial ownership of a Certificate, as the case
may be, which may include a certification. Copies (or computer diskettes or
other digital or electronic copies of such information if reasonably available
in lieu of paper copies) of any and all of the foregoing items shall be made
available by the applicable Master Servicers upon request; provided, however,
that the applicable Master Servicers shall be permitted to require payment by
the requesting party (other than the Depositor, the Trustee, the Paying Agent,
the applicable Special Servicer, the Operating Adviser, any Placement Agent, any
Underwriter, or any Rating Agency) of a sum sufficient to cover the reasonable
expenses actually incurred by such Master Servicer of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require either of the Master
Servicers to confirm, represent or warrant the accuracy of (or to be liable or
responsible for) any other Person's information or report. Notwithstanding the
above, neither of the Master Servicers shall have any liability to the
Depositor, the Trustee, the Paying Agent, the applicable Special Servicer, any
Certificateholder, any Certificate Owner, the holder of any Serviced Companion
Loan, the Placement Agent, any Underwriter, any Rating Agency or any other
Person to whom it delivers information pursuant to this Section 8.15 or any
other provision of this Agreement for federal, state or other applicable
securities law violations relating to the disclosure of such information. In the
event any Person brings any claims relating to or arising from the foregoing
against a Master Servicer (or any partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents thereof), the Trust
(from amounts held in any account (including, with respect to any such claims
relating to a Serviced Companion Loan, from accounts held in the Serviced
Companion Loan Custodial Account)) shall hold harmless and indemnify such Master
Servicer from any loss or expense (including attorney fees) relating to or
arising from such claims.
(d) Each Master Servicer shall produce the reports required of it
under this Agreement; provided, however, that the Master Servicers shall not be
required to produce any ad hoc non-standard written reports not otherwise
required under this Agreement with respect to such Mortgage Loans. In the event
a Master Servicer elects to provide such non-standard reports, it may require
the Person requesting such report (other than a Rating Agency) to pay a
reasonable fee to cover the costs of the preparation thereof. Notwithstanding
anything to the contrary herein, as a condition to a Master Servicer making any
report or information available upon request to any Person other than the
parties hereto, such Master Servicer may require that the recipient of such
information acknowledge that such Master Servicer may contemporaneously provide
such information to the Depositor, the Trustee, the Paying Agent, the applicable
Special Servicer, the Primary Servicer, the Sellers, the Placement Agent, any
Underwriter, any Rating Agency and/or the Certificateholders, any holder of a
Serviced Companion Loan or Certificate Owners. Any transmittal of information by
a Master Servicer to any Person other than the Trustee, the Paying Agent, the
other Master Servicer, the Special Servicers, the Rating Agencies, the Operating
Adviser or the Depositor may be accompanied by a letter from such Master
Servicer containing a disclaimer as to the confidentiality of the information
requested.
(e) Each Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that such Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) Each Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
(g) Once a month, each of the Master Servicers and the Special
Servicers shall, without charge, make a knowledgeable Servicing Officer
available to answer questions from the Operating Adviser during regular business
hours at such time and for such duration as the applicable Master Servicer or
Special Servicer, and the Operating Adviser shall reasonably agree, regarding
the performance and servicing of the Mortgage Loans and REO Properties for which
such Master Servicer or Special Servicer, as the case may be, is responsible. As
a condition to such disclosure, the Operating Adviser shall execute a
confidentiality agreement in form reasonably acceptable to each Master Servicer,
each Special Servicer and the Operating Adviser.
Section 8.16 Rule 144A Information
For as long as any of the Certificates are "restricted securities"
within the meaning of Rule 144A under the Securities Act, each Master Servicer
agrees to provide to the Paying Agent for delivery to any Holder thereof, any
Certificate Owner therein and to any prospective purchaser of the Certificates
or beneficial interest therein reasonably designated by the Paying Agent upon
the request of such Certificateholder, such Certificate Owner or the Paying
Agent, subject to this Section 8.16 and the provisions of Section 8.15, any
information prepared by such Master Servicer that is required to be provided to
such holder or prospective purchaser to satisfy the condition set forth in Rule
144A(d)(4) under the Securities Act, including, without limitation, copies of
the reports and information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the applicable
Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the applicable Master Servicer chooses to deliver the
information directly, the Depositor, the Placement Agent, the Underwriters or
the Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to a Master
Servicer making any report or information available upon request to any Person
other than the parties hereto, such Master Servicer may require that the
recipient of such information acknowledge that such Master Servicer may
contemporaneously provide such information to the Depositor, the Trustee, the
Paying Agent, the Placement Agent, the Underwriters, any Rating Agency and/or
the Certificateholders and Certificate Owners. The Master Servicers will be
permitted to require payment of a sum to be paid by the requesting party (other
than the Rating Agencies, the Trustee, the Paying Agent, the Placement Agent or
the Underwriters) sufficient to cover the reasonable costs and expenses of
making such information available.
Section 8.17 Inspections
Each Master Servicer shall, at its own expense, inspect or cause to
be inspected each Mortgaged Property for which it is acting as Master Servicer,
other than Mortgaged Properties related to Specially Serviced Mortgage Loans,
every calendar year beginning in 2008, or every second calendar year beginning
in 2008 if the Principal Balance of the related Mortgage Loan is under
$2,000,000; provided that each Master Servicer shall, at the expense of the
Trust, inspect or cause to be inspected each Mortgaged Property related to a
Mortgage Loan for which it is acting as Master Servicer (other than a Specially
Serviced Mortgage Loan, or if there has not been an inspection within the past
six months) that has a Debt Service Coverage Ratio that falls below 1.0x or,
with respect to Co-op Mortgage Loans, 0.90x. The foregoing sentence shall not
alter the terms of the applicable Special Servicer's obligation to inspect
Mortgaged Properties as set forth in Section 9.4(b) hereto. The applicable
Master Servicer shall cause to be prepared an Inspection Report relating to each
inspection.
With respect to the Mortgage Loans other than the RBC Loans, the
Nationwide Loans and the NCB, FSB Loans, the applicable Inspection Reports shall
be available for review by the Trustee, the General Special Servicer, the Rating
Agencies, the Placement Agent, the Underwriters, the Depositor, the Paying
Agent, the Operating Adviser (in the case of the initial Operating Advisor, in
accordance with the Centerline Naming Convention), any Certificate Owner, any
Seller and any Primary Servicer via password protocol and execution of an
agreement relating thereto on the Capmark Master Servicer's Website. With
respect to the RBC Loans and the Nationwide Loans, the applicable Inspection
Reports shall be available for review by the Trustee, the General Special
Servicer, the Rating Agencies, the Placement Agent, the Underwriters, the
Depositor, the Paying Agent, the Operating Adviser (in the case of the initial
Operating Advisor, in accordance with the Centerline Naming Convention), any
Certificate Owner, any Seller and any Primary Servicer via password protocol and
execution of an agreement relating thereto on the Xxxxx Fargo Master Servicer's
Website. With respect to the NCB, FSB Loans, the applicable Inspection Reports
shall be available for review by the Trustee, the Co-op Special Servicer, the
Rating Agencies, the Placement Agent, the Underwriters, the Depositor, the
Paying Agent, the Operating Adviser, any Certificate Owner, any Seller and any
Primary Servicer via password protocol and execution of an agreement relating
thereto on the NCB Master Servicer's Website (which shall be initially located
at xxx.xxx.xxxx) by the Business Day following the Distribution Date in December
2007. The NCB Master Servicer shall, upon request by any of such parties,
deliver copies of such documents to any of the foregoing parties if such
documents are not available on the NCB Master Servicer's Website at such time.
The applicable Special Servicer shall have the right, but no duty, to inspect or
cause to be inspected (at its own expense) every calendar year any Mortgaged
Property related to a Mortgage Loan that is not a Specially Serviced Mortgage
Loan, provided that such Special Servicer notifies such Master Servicer prior to
such inspection.
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents
Subject to the limitations of Sections 9.39 and 12.3, each Master
Servicer shall have the following powers:
(a) (i) The applicable Master Servicer, in accordance with the
Servicing Standard, may agree to any modification, waiver, amendment or
consent of or relating to any term (including, without limitation, Master
Servicer Consent Matters set forth in Section 8.3(a) hereof and waiver of
default interest and Late Fees as provided in Section 8.3(a)) other than a
Money Term of a Mortgage Loan that is not a Specially Serviced Mortgage
Loan, provided that such amendment would not result in an Adverse REMIC
Event; and provided, further, that if any consent relates to a release of
a letter of credit relating to any Mortgage Loan (other than letters of
credit or portions thereof released upon satisfaction of conditions
specified in the related agreements), then (i) the applicable Master
Servicer shall notify the applicable Special Servicer of any Mortgagor's
request to release such letter of credit which the Master Servicer
recommends to release, and (ii) if the terms of the related Mortgage Loan
do not require the applicable Master Servicer to approve a release, then
the applicable Special Servicer shall within five Business Days provide
notice to the applicable Master Servicer on whether the applicable Master
Servicer should approve the release (and the failure of the applicable
Special Servicer to give the applicable Master Servicer such notice shall
automatically be deemed to be an approval by such Special Servicer that
such Master Servicer should grant such release). Notwithstanding the
preceding sentence, with respect to the Mortgage Loans that are not
Specially Serviced Loans, if a Master Servicer recommends to approve a
modification, waiver, amendment or consent which is not a Master Servicer
Consent Matter (including, without limitation, any waiver of any
requirement that the Mortgagor post additional reserves or a letter of
credit upon the failure of the Mortgagor to satisfy conditions specified
in the Mortgage Loan documents, but excluding any waiver of default
interest and Late Fees as provided in Section 8.3(a)), the applicable
Master Servicer shall provide to the applicable Special Servicer a copy of
such Master Servicer's recommendation and the relevant information
obtained or prepared by such Master Servicer in connection therewith and
all other information in such Master Servicer's possession reasonably
requested by such Special Servicer, provided, that (A) the applicable
Special Servicer shall have the right hereunder to grant or withhold
consent to any such proposed modification, waiver, amendment or consent,
and such Special Servicer shall not unreasonably withhold such consent and
any such decision shall be in accordance with the Servicing Standard, (B)
failure of the applicable Special Servicer to notify the applicable Master
Servicer, within five Business Days following such Master Servicer's
delivery of the recommendation and all required information described
above, of its determination to grant or withhold such consent shall be
deemed to constitute a grant of such consent and (C) the applicable Master
Servicer shall not enter into any such proposed modification, waiver,
amendment or consent unless it has received the written consent of the
applicable Special Servicer or such consent has been deemed to have been
granted as described above. Notwithstanding anything in this Agreement to
the contrary, a Master Servicer shall not be required to obtain or request
the consent of the applicable Special Servicer in connection with any
modification, waiver or amendment, or granting its consent to
transactions, under one or more of the Mortgage Loans that in each case
such Master Servicer has determined (in accordance with the Servicing
Standard) is immaterial. In any event, the applicable Master Servicer
shall promptly notify the applicable Special Servicer of any material
modification, waiver, amendment or consent executed by such Master
Servicer pursuant to this Section 8.18(a)(i) and provide to such Special
Servicer a copy thereof. Notwithstanding the foregoing provisions of this
Section 8.18, if the Mortgage Loan documents do not preclude imposition of
a requirement to or require a Mortgagor to pay a fee for an assumption,
modification, waiver, amendment or consent that would be due or partially
due to a Special Servicer, then the applicable Master Servicer shall not
waive the portion of such fee due to such Special Servicer without such
Special Servicer's approval.
Notwithstanding the foregoing, the General Special Servicer
acknowledges that the Capmark Master Servicer has delegated certain tasks,
rights and obligations to the Primary Servicer for the PCFII Loans with
respect to Post-Closing Requests pursuant to Section 8.4 of this
Agreement, and that the Primary Servicing Agreement for the PCFII Loans
classifies certain Post-Closing Requests as Category 1 Requests in which
the applicable Primary Servicer has certain authority to evaluate and
process such requests in accordance with this Agreement, the applicable
Primary Servicing Agreement and the applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or
approval of the applicable Mortgagee under the Mortgage Loan documents,
the Primary Servicing Agreement for the PCFII Loans provides for the
Capmark Master Servicer's determination of materiality of such condition,
term or provision requiring approval or consent and the referral of such
condition, term or provision to the General Special Servicer for consent
in accordance with the terms of such Primary Servicing Agreements upon a
determination of materiality. The General Special Servicer hereby
acknowledges such provisions, including that "materiality" shall include
the existence of an Adverse REMIC Event. Nothing in this Agreement,
however, shall grant the applicable Primary Servicers greater authority,
discretion or delegated rights over Post-Closing Requests than are set
forth in the applicable Primary Servicing Agreements.
(ii) A Master Servicer may, without the consent of the applicable
Special Servicer, extend the maturity date of any Balloon Mortgage Loan
that is not a Specially Serviced Mortgage Loan to a date that is not more
than 90 days following the original Maturity Date, if the Mortgagor timely
makes the Assumed Scheduled Payments and in such Master Servicer's sole
judgment exercised in good faith (and evidenced by an Officer's
Certificate), a default in the payment of the Balloon Payment is
reasonably foreseeable and the Mortgagor has obtained an executed written
commitment (subject only to satisfaction of conditions set forth therein)
for refinancing of the Mortgage Loan or purchase of the related Mortgaged
Property. Such Master Servicer shall process all such extensions and shall
be entitled to (as additional servicing compensation) 100% of any
extension fees collected from a Mortgagor with respect to any such
extension.
(b) Each Master Servicer may require, in its discretion (unless
prohibited or otherwise provided in the Mortgage Loan documents), as a condition
to granting any request by a Mortgagor for any consent, modification, waiver or
amendment, that such Mortgagor pay to such Master Servicer a reasonable and
customary modification fee to the extent permitted by law; provided that the
collection of such fee shall not be permitted if collection of such fee would
cause a "significant modification" (within the meaning of Treasury Regulations
Section 1.860G-2(b) of the Mortgage Loan). Each Master Servicer shall be
entitled to (as additional servicing compensation) 100% (unless, with respect to
the Capmark Master Servicer and the Xxxxx Fargo Master Servicer, consent from
the applicable Special Servicer is required, then 50%) of any Modification Fees
collected from a Mortgagor in connection with a consent, waiver, modification or
amendment of a non-Specially Serviced Mortgage Loan executed or granted pursuant
to this Section 8.18. Each Master Servicer may charge the Mortgagor for any
costs and expenses (including attorneys' fees and Rating Agency Confirmation
fees) incurred by such Master Servicer or the applicable Special Servicer (which
amounts shall be reimbursed to such Special Servicer) in connection with any
request for a modification, waiver or amendment. Each Master Servicer agrees to
use its reasonable efforts in accordance with the Servicing Standard to collect
such costs, expenses and fees from the Mortgagor, provided that the failure or
inability of the Mortgagor to pay any such costs and expenses shall not impair
the right of such Master Servicer to cause such costs and expenses (but not
including any modification fee), and interest thereon at the Advance Rate, to be
paid or reimbursed by the Trust as a Servicing Advance (to the extent not paid
by the Mortgagor). If a Master Servicer believes that the costs and expenses
(including attorneys' fees) to be incurred by such Master Servicer in connection
with any request for a modification, waiver or amendment will result in a
payment or reimbursement by the Trust, then such Master Servicer shall notify
the applicable Special Servicer.
(c) Each Master Servicer shall notify the Trustee, the Paying Agent
and the applicable Special Servicer of any modification, waiver or amendment of
any term of any Mortgage Loan permitted by it under this Section and the date
thereof, and shall deliver to the Trustee for deposit in the related Mortgage
File, an original counterpart of the agreement relating to such modification,
waiver or amendment, promptly following the execution thereof except to the
extent (i) allowed with respect to waiver of default interest and Late Fees as
provided in Section 8.3(a) and (ii) such documents have been submitted to the
applicable recording office, in which event such Master Servicer shall promptly
deliver copies of such documents to the Trustee. A Master Servicer shall not
agree to any modification, waiver, or amendment of any Money Term of a Mortgage
Loan or any term of a Specially Serviced Mortgage Loan.
(d) If the Mortgage Loan documents relating to a Mortgage Loan
provide that certain conditions must be satisfied prior to the applicable Master
Servicer releasing additional collateral for the Mortgage Loan (e.g., the
release, reduction or termination of reserves or letters of credit or the
establishment of reserves), then such Master Servicer shall be permitted to
waive any such condition without obtaining the consent of the applicable Special
Servicer, provided that (1) the aggregate amount of the related release,
reduction or termination is no greater than the smaller of 10% of the
outstanding unpaid Principal Balance of the related Mortgage Loan or $75,000,
(2) the condition to be waived is deemed to be non-material in accordance with
the Servicing Standard and (3) such release, reduction or termination would not
otherwise cause an Adverse REMIC Event. Notwithstanding the foregoing, without
the applicable Special Servicer's consent or except as provided in the specific
Mortgage Loan documents, a Master Servicer shall not waive: (1) a requirement
for any such additional collateral to exist, or (2) a lock box requirement.
Section 8.19 Specially Serviced Mortgage Loans
(a) The applicable Master Servicer shall send a written notice to
the applicable Special Servicer, the Operating Adviser, Rating Agencies, the
Paying Agent, the Trustee and, solely as it relates to a Serviced Loan Group, to
the holder of the related Serviced Companion Loan, within two Business Days
after becoming aware of a Servicing Transfer Event with respect to a Mortgage
Loan, which notice shall identify the related Mortgage Loan and set forth in
reasonable detail the nature and relevant facts of such Servicing Transfer Event
and whether such Mortgage Loan is covered by an Environmental Insurance Policy
(and for purposes of stating whether such Mortgage Loan is covered by an
Environmental Insurance Policy applicable the Master Servicer may rely on the
Mortgage Loan Schedule) and, except for the Rating Agencies, the Paying Agent
and the Trustee, shall be accompanied by a copy of the Servicer Mortgage File.
The applicable Special Servicer shall not be liable for its failure to deliver
the notice set forth in Section 9.36(a) if such failure is caused by its failure
to receive the written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the applicable Special Servicer, the applicable Master Servicer
shall notify the related Mortgagor of such transfer in accordance with the
Servicing Standard (the form and substance of such notice shall be reasonably
satisfactory to the applicable Special Servicer).
(c) Any calculations or reports prepared by the applicable Master
Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be
based on information supplied to such Master Servicer in writing by the
applicable Special Servicer as provided hereby. The applicable Master Servicer
shall have no duty to investigate or confirm the accuracy of any information
provided to it by the applicable Special Servicer and shall have no liability
for the inaccuracy of any of its reports due to the inaccuracy of the
information provided by such Special Servicer.
(d) On or prior to each Distribution Date, the applicable Master
Servicer shall provide to the applicable Special Servicer, in order for such
Special Servicer to comply with its obligations under this Agreement, such
information (and in the form and medium) as such Special Servicer may reasonably
request in writing from time to time, provided that (i) the applicable Master
Servicer shall not be required to produce any ad hoc reports or incur any
unusual expense or effort in connection therewith and (ii) if such Master
Servicer elects to provide such ad hoc reports, it may require such Special
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
Section 8.20 Representations, Warranties and Covenants of the Master
Servicers
(a) The Capmark Master Servicer hereby represents and warrants to
and covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the Capmark Master Servicer is duly organized, validly existing
and in good standing as a corporation under the laws of the State of
California, and shall be and thereafter remain, in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement, except
where the failure to so qualify or comply would not adversely affect the
Capmark Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) the Capmark Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all
transactions and obligations contemplated by this Agreement. The Capmark
Master Servicer has duly and validly authorized the execution, delivery
and performance of this Agreement and this Agreement has been duly
executed and delivered by the Capmark Master Servicer; and this Agreement,
assuming the due authorization, execution and delivery thereof by the
Depositor, the Xxxxx Fargo Master Servicer, the NCB Master Servicer, the
Trustee, the Paying Agent, the General Special Servicer and the Cop-op
Special Servicer, evidences the valid and binding obligation of the
Capmark Master Servicer enforceable against the Capmark Master Servicer in
accordance with its terms subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium,
receivership and other similar laws affecting creditors' rights generally
as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(iii) the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1)
result in a breach of any term or provision of its charter or by-laws or
(2) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound, or any law,
governmental rule, regulation, or judgment, decree or order applicable to
it of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely affects
its ability to perform its obligations under this Agreement;
(iv) no litigation is pending or, to the Capmark Master Servicer's
knowledge, threatened, against it, that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or its
ability to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained the
same or will obtain the same prior to the time necessary to perform its
obligations under this Agreement, and, except to the extent in the case of
performance, that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the performance by it
of its obligations hereunder; and
(vi) the performance of the services by the Capmark Master Servicer
contemplated by this Agreement are in the ordinary course of business of
the Capmark Master Servicer and the Capmark Master Servicer possesses all
licenses, permits and other authorizations necessary to perform its duties
hereunder.
(b) The NCB Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the NCB Master Servicer is a federal savings bank duly
organized, validly existing and in good standing under the laws of the
United States, and the NCB Master Servicer is in compliance with the laws
of each State in which any related Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement, except
where the failure to so qualify or comply would not adversely affect the
NCB Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) the NCB Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate the
NCB 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 good faith and reasonable judgment of the
NCB Master Servicer, is likely to affect materially and adversely either
the ability of the NCB Master Servicer to perform its obligations under
this Agreement or the financial condition of the NCB Master Servicer;
(iii) the NCB Master Servicer has the full power and authority to
enter into and consummate all transactions involving the NCB 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 NCB Master Servicer, enforceable against the
NCB 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 NCB 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 NCB Master Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the NCB Master Servicer to perform its obligations under this Agreement
or the financial condition of the NCB 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 NCB 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 NCB Master Servicer to perform its obligations under
this Agreement;
(vii) no litigation is pending or, to the best of the NCB Master
Servicer's knowledge, threatened against the NCB Master Servicer the
outcome of which, in the NCB Master Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the NCB Master Servicer
from entering into this Agreement or materially and adversely affect the
ability of the NCB Master Servicer to perform its obligations under this
Agreement; and
(viii) the NCB Master Servicer has errors and omissions insurance as
required by Section 8.2.
(c) The Xxxxx Fargo Master Servicer hereby represents and warrants
to and covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the Xxxxx Fargo Master Servicer is duly organized, validly
existing and in good standing as a national banking association under the
laws of the United States of America, and shall be and thereafter remain,
in compliance with the laws of each State in which any Mortgaged Property
is located to the extent necessary to perform its obligations under this
Agreement, except where the failure to so qualify or comply would not
adversely affect the Xxxxx Fargo Master Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement;
(ii) the Xxxxx Fargo Master Servicer has the full power and
authority to execute, deliver, perform, and to enter into and consummate
all transactions and obligations contemplated by this Agreement. The Xxxxx
Fargo Master Servicer has duly and validly authorized the execution,
delivery and performance of this Agreement and this Agreement has been
duly executed and delivered by the Xxxxx Fargo Master Servicer; and this
Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Capmark Master Servicer, the NCB Master Servicer,
the Paying Agent, the Trustee, the General Special Servicer and the Co-op
Special Servicer, evidences the valid and binding obligation of the Xxxxx
Fargo Master Servicer enforceable against the Xxxxx Fargo Master Servicer
in accordance with its terms subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium,
receivership and other similar laws affecting creditors' rights generally
as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(iii) the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1)
result in a breach of any term or provision of its charter or by-laws or
(2) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound, or any law,
governmental rule, regulation, or judgment, decree or order applicable to
it of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely affects
its ability to perform its obligations under this Agreement;
(iv) no litigation is pending or, to the Xxxxx Fargo Master
Servicer's knowledge, threatened, against it, that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or its ability to service the Mortgage Loans or to perform any
of its other obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained the
same or will obtain the same prior to the time necessary to perform its
obligations under this Agreement, and, except to the extent in the case of
performance, that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the performance by it
of its obligations hereunder; and
(vi) the performance of the services by the Xxxxx Fargo Master
Servicer contemplated by this Agreement are in the ordinary course of
business of the Xxxxx Fargo Master Servicer and the Xxxxx Fargo Master
Servicer possesses all licenses, permits and other authorizations
necessary to perform its duties hereunder.
(d) It is understood that the representations and warranties set
forth in this Section 8.20 shall survive the execution and delivery of this
Agreement.
(e) Any cause of action against a Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the applicable Master Servicer by any of
the Trustee or the applicable Master Servicer. The applicable Master Servicer
shall give prompt notice to the Trustee, the Depositor, the Primary Servicers
and the applicable Special Servicer of the occurrence, or the failure to occur,
of any event that, with notice or the passage of time or both, would cause any
representation or warranty in this Section to be untrue or inaccurate in any
respect.
Section 8.21 Merger or Consolidation
Any Person into which a Master Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which such Master Servicer shall be a party, or any
Person succeeding to the business of such Master Servicer, shall be the
successor of such Master Servicer hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided,
however, that each Rating Agency provides a Rating Agency Confirmation
(including, as to any such succession with respect to the applicable Master
Servicer, with respect to any securities rated by a Rating Agency evidencing
direct beneficial ownership interest in any Serviced Companion Loan). If such a
transaction occurs and the conditions to the provisions in the foregoing
sentence are not met, the Trustee may terminate, or if such a transaction occurs
and the conditions set forth in the following paragraph are not met the Trustee
shall terminate, the successor's, survivor's or resulting entity's servicing of
the Mortgage Loans pursuant hereto, such termination to be effected in the
manner set forth in Sections 8.28 and 8.29.
Notwithstanding the foregoing, as long as the Trust is subject to
the reporting requirements of the Exchange Act, neither Master Servicer may
remain a Master Servicer under this Agreement after (x) being merged or
consolidated with or into any Person that is a Prohibited Party, or (y)
transferring all or substantially all of its assets to any Person if such Person
is a Prohibited Party, unless (i) such Master Servicer is the surviving entity
of such merger, consolidation or transfer or (ii) the Depositor consents to such
merger, consolidation or transfer, which consent shall not be unreasonably
withheld (and if, within 45 days following the date of delivery of a notice by
the applicable Master Servicer to the Depositor of any merger or similar
transaction described in the prior paragraph, the Depositor shall have failed to
notify the applicable Master Servicer of the Depositor's determination to grant
or withhold such consent, such failure shall be deemed to constitute a grant of
such consent).
Section 8.22 Resignation of the Master Servicer
(a) Except as otherwise provided in Section 8.22(b) hereof, a Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that such Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of such Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed such Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation shall have been obtained. Notice of
such resignation shall be given promptly by such Master Servicer to the Trustee
and the Paying Agent.
(b) A Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee and the Paying Agent, provided
that (i) a successor servicer (x) is available, (y) is willing to assume the
obligations, responsibilities, and covenants to be performed hereunder by such
Master Servicer on substantially the same terms and conditions, and for not more
than equivalent compensation to that herein provided and (z) assumes all
obligations of the resigning applicable Master Servicer under the related
Primary Servicing Agreements; (ii) such Master Servicer bears all costs
associated with its resignation and the transfer of servicing; and (iii) Rating
Agency Confirmation is obtained with respect to such servicing transfer, as
evidenced by a letter delivered to the Trustee by each such Rating Agency.
Section 8.23 Assignment or Delegation of Duties by a Master Servicer
A Master Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of such Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by such Master Servicer hereunder or (B) assign and
delegate all of its duties hereunder; provided, however, that with respect to
clause (B), (i) such Master Servicer gives the Depositor, the applicable Special
Servicer, the Primary Servicers, the holder of a Serviced Companion Loan (only
if such assignment/delegation relates to the related Serviced Loan Group) and
the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of such Master Servicer, with like effect as if
originally named as a party to this Agreement and the Primary Servicing
Agreements; (iii) the purchaser or transferee has assets in excess of
$15,000,000; (iv) such assignment and delegation is the subject of a Rating
Agency Confirmation from Fitch, S&P and DBRS; and (v) the Depositor consents to
such assignment and delegation, such consent not be unreasonably withheld. In
the case of any such assignment and delegation in accordance with the
requirements of subclause (B) of this Section, such Master Servicer shall be
released from its obligations under this Agreement, except that such Master
Servicer shall remain liable for all liabilities and obligations incurred by it
as such Master Servicer hereunder prior to the satisfaction of the conditions to
such assignment set forth in the preceding sentence. Notwithstanding the above,
such Master Servicer may appoint the Primary Servicers and Sub-Servicers in
accordance with Section 8.4 hereof.
Section 8.24 Limitation on Liability of the Master Servicers and
Others
(a) Neither of the Master Servicers nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of the Master Servicers shall be under any liability to the holders of
the Certificates, the Depositor, the Trustee, the Paying Agent, the Placement
Agent, the Underwriters, a holder of a Serviced Companion Loan or the Special
Servicers for any action taken or for refraining from the taking of any action
in good faith, or using reasonable business judgment, consistent with the
Servicing Standard; provided that this provision shall not protect any Master
Servicer or any such Person against any breach of a representation or warranty
contained herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
the Agreement or by reason of negligent disregard of obligations and duties
hereunder. The Master Servicers and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of the Master Servicers
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person (including, without limitation, the applicable
Special Servicer) respecting any matters arising hereunder. The Master Servicers
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement; provided that each Master Servicer may in its
sole discretion undertake any such action which it may reasonably deem necessary
or desirable in order to protect the interests of the Certificateholders and the
Trustee in the Mortgage Loans or the interests of the holders of the Serviced
Companion Loans (subject to the applicable Special Servicer's servicing of
Specially Serviced Mortgage Loans as contemplated herein). In such event, all
legal expenses and costs of such action shall be expenses and costs of the
Trust, and any Master Servicer shall be entitled to be reimbursed therefor as
Servicing Advances as provided by Section 5.2, subject to the provisions of
Section 4.4 hereof.
(b) In addition, the Master Servicers shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to such Master Servicers and conforming to the requirements
of this Agreement. Subject to the Servicing Standard, each Master Servicer shall
have the right to rely on information provided to it by the applicable Special
Servicer and Mortgagors, and will have no duty to investigate or verify the
accuracy thereof. Neither the Master Servicers, nor any partner, representative,
Affiliate, member, manager, director, officer, employee or agent, shall be
personally liable for any error of judgment made in good faith by any officer,
unless it shall be proved that such Master Servicer or such officer was
negligent in ascertaining the pertinent facts. Neither the Master Servicers nor
any partner, representative, Affiliate, member, manager, director, officer,
employee or agent, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicers shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicers, the Paying Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Master Servicers from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent such Master Servicer is unable to recover such amounts from the
Person in breach.
(d) Except as otherwise specifically provided herein:
(i) a Master Servicer may rely, 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, financial statement,
agreement, appraisal, bond or other document (in electronic or paper
format) reasonably believed or in good faith believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) a Master 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 and in accordance with such advice or Opinion of
Counsel;
(iii) a Master Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon
it by this Agreement; and
(iv) a Master Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper (in electronic or
paper format) reasonably believed by it to be genuine and provided by any
Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicers and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of such Master Servicer
shall be indemnified by the Trustee, the Paying Agent and the applicable Special
Servicer, as the case may be, and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses that such Master Servicer
may sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of the Trustee's, the Paying Agent's or the
applicable Special Servicer's duties hereunder, as the case may be, or by reason
of negligent disregard of the Trustee's, the applicable Special Servicer's or
the Paying Agent's obligations and duties hereunder, as the case may be,
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations). A
Master Servicer shall immediately notify the Trustee, the Paying Agent and the
applicable Special Servicer, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans for which it is acting as Master Servicer
entitling such Master Servicer to indemnification hereunder, whereupon the
Trustee, the Paying Agent or the applicable Special Servicer, in each case, to
the extent the claim is related to its respective willful misfeasance, bad
faith, negligence or negligent disregard, shall assume the defense of any such
claim (with counsel reasonably satisfactory to such Master Servicer) 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, the Paying
Agent and the applicable Special Servicer shall not affect any rights that such
Master Servicer may have to indemnification under this Agreement or otherwise,
unless the Trustee's, the Paying Agent's or such Special Servicer's defense of
such claim is materially prejudiced thereby. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of such Master
Servicer hereunder. Any payment hereunder made by the Trustee, the Paying Agent
or the applicable Special Servicer pursuant to this paragraph to such Master
Servicer shall be paid from the Trustee's, the Paying Agent's or such Special
Servicer's own funds, without reimbursement from the Trust therefor except to
the extent achieved through subrogation as provided in this Agreement. Any
expenses incurred or indemnification payments made by the Trustee, the Paying
Agent or the applicable Special Servicer shall be reimbursed by the party so
paid, if a court of competent jurisdiction makes a final judgment that the
conduct of the Trustee, the Paying Agent or such Special Servicer, as the case
may be, was not culpable of willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or of negligent disregard of its
respective duties hereunder or the indemnified party is found to have acted with
willful misfeasance, bad faith or negligence.
Section 8.25 Indemnification; Third-Party Claims
(a) Each Master Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of each such Master
Servicer shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to this Agreement, any
Mortgage Loans, the Serviced Companion Loans (as provided in the following
paragraph), any REO Property or the Certificates or any exercise of any right
under this Agreement reasonably requiring the use of counsel or the incurring of
expenses other than any loss, liability or expense incurred by reason of such
Master Servicer's willful misfeasance, bad faith or negligence in the
performance of duties hereunder.
Except as provided in the following sentence and subject to the
provisions of Section 9.40, the indemnification described in the preceding
paragraph (including in the case of such claims or losses that relate primarily
to the administration of the Trust, to any REMIC Pool or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
Provisions or the actual payment of any REMIC tax or expense) shall be paid out
of collections on, and other proceeds of, the Mortgage Loans as a whole but not
out of collections on, or other proceeds of, each Serviced Companion Loan. In
the case of any such claims or losses that do not relate primarily to the
administration of the Trust, to any REMIC Pool or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
Provisions or the actual payment of any REMIC tax or expense, if such claims or
losses relate to a Serviced Loan Group, then such indemnification shall be paid
(x) first, out of collections on, and other proceeds of, the Senior Mortgage
Loans, as applicable, and the Serviced Companion Loans, as applicable, in the
relative proportions provided for in the applicable Co-Lender Agreement and (y)
if the collections and proceeds described in subclause (x) are not sufficient to
so indemnify such indemnified parties on a current basis, then the balance of
such indemnification shall be paid out of collections on, and other proceeds of,
the Mortgage Loans as a whole.
A Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to such Master Servicer) and out of the Trust
pay all expenses in connection therewith, including counsel fees, and out of the
Trust promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim and satisfy any settlement
or other disposition in respect of such claim. The indemnification provided
herein shall survive the termination of this Agreement or of the Master
Servicers in such capacity. The Trustee, the Paying Agent or the Master
Servicers shall promptly make from the applicable Certificate Account (and, if
and to the extent that the amount due shall be paid from collections on, and
other proceeds of, a Serviced Companion Loan as described above, out of the
Serviced Companion Loan Custodial Account) any payments certified by the
applicable Master Servicer to the Trustee and the Paying Agent as required to be
made to the applicable Master Servicer pursuant to this Section 8.25.
(b) Each Master Servicer agrees to indemnify the Trustee, the
applicable Special Servicer, the Trust, the Depositor, the Paying Agent, the
Custodian, and any partner, representative, Affiliate, member, manager,
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the applicable Special Servicer, the Depositor,
the Paying Agent, the Custodian and the Trust may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of such Master Servicer's duties hereunder or by reason of negligent
disregard of such Master Servicer's obligations and duties hereunder (including
a breach of such obligations a substantial motive of which is to obtain an
economic advantage from being released from such obligations), and if in any
such situation such Master Servicer is replaced, the parties hereto agree that
the amount of such claims, losses, penalties, fines, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor servicer. The
Trustee, the applicable Special Servicer, the Paying Agent, the Custodian or the
Depositor, as applicable, shall immediately notify the applicable Master
Servicer if a claim is made by any Person with respect to this Agreement or the
Mortgage Loans entitling the Trustee, the Depositor, the applicable Special
Servicer, the Paying Agent, the Custodian or the Trust to indemnification under
this Section 8.25(b), whereupon the applicable Master Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Trustee,
the applicable Special Servicer, the Paying Agent, the Custodian or the
Depositor, as applicable) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the applicable Master Servicer shall not affect any rights
the Trustee, the applicable Special Servicer, the Depositor, the Paying Agent,
the Custodian or the Trust may have to indemnification under this Agreement or
otherwise, unless the applicable Master Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
applicable Master Servicer, the applicable Special Servicer, the Paying Agent
and the Trustee. Any expenses incurred or indemnification payments made by the
applicable Master Servicer shall be reimbursed by the party so paid, if a court
of competent jurisdiction makes a final, non-appealable judgment that the
conduct of the applicable Master Servicer was not culpable of willful
misfeasance, bad faith or negligence in the performance of its respective duties
hereunder or of negligent disregard of its respective duties hereunder or the
indemnified party is found to have acted with willful misfeasance, bad faith or
negligence.
(c) The Master Servicers shall not have any liability to the
Depositor, the Trustee, the Paying Agent, the Special Servicers, any Other
Master Servicer, any Other Special Servicer, any Certificateholder, any
Certificate Owner, any holder of a Serviced Companion Loan, any Primary
Servicer, the Placement Agent, any Underwriter, any Rating Agency or any other
Person to whom it delivers information pursuant to the provisions of this
Agreement (based on any other Person's information or report) for federal, state
or other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against a Master Servicer (or any partners, representatives,
Affiliates, members, managers, directors, officers, employees, agents thereof),
the Trust (from amounts held in any account) shall hold harmless and indemnify
such Master Servicer from any loss or expense (including attorney fees) relating
to or arising from such claims.
(d) Each of the Other Master Servicers and any partner,
representative, Affiliate, member, manager, director, officer, employee or agent
of such Other Master Servicer shall be indemnified by the Trust and held
harmless against (i) the Trust's pro rata share of any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action relating to the related Other Pooling and Servicing Agreement and
this Agreement, and relating to the related Non-Trust Serviced Pari Passu Loan
(but excluding any such losses allocable to the related Non-Trust Serviced
Companion Loan), reasonably requiring the use of counsel or the incurring of
expenses other than any losses incurred by reason of such Other Master
Servicer's willful misfeasance, bad faith or negligence in the performance of
its duties under the related Other Pooling and Servicing Agreement and (ii) any
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses relating to the
related Non-Trust Serviced Pari Passu Loan, but only to the extent that such
losses arise out of the actions of the Master Servicers, the Special Servicers
or the Trustee, and only to the extent that such actions are in violation of
such party's duties under the provisions of this Agreement and to the extent
that such actions are the result of such party's negligence, bad faith or
willful misconduct.
(e) The