STRUCTURED ASSET SECURITIES CORPORATION II,
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
and
LNR PARTNERS, INC.,
as Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of April 11, 2007
----------
$3,554,401,860
LB-UBS Commercial Mortgage Trust 2007-C2
Commercial Mortgage Pass-Through Certificates,
Series 2007-C2
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN ADJUSTMENTS TO THE
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms.................................................................... 9
SECTION 1.02. General Interpretive Principles.................................................. 118
SECTION 1.03. Certain Adjustments to the Principal Distributions on the Certificates........... 118
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Trust Mortgage Loans............................ 121
SECTION 2.02. Acceptance of Trust Fund by Trustee.............................................. 126
SECTION 2.03. Repurchase of Trust Mortgage Loans for Document Defects and Breaches of
Representations and Warranties................................................ 128
SECTION 2.04. Representations, Warranties and Covenants of the Depositor....................... 139
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance of the Class V
Certificates.................................................................. 141
SECTION 2.06. Acceptance of Loan REMICs by Trustee; Execution, Authentication and Delivery of
Class R-LR Certificates; Creation of Loan REMIC Regular Interests............. 142
SECTION 2.07. Conveyance of Loan REMIC Regular Interests....................................... 143
SECTION 2.08. Execution, Authentication and Delivery of Class R-I Certificates; Creation of
REMIC I Regular Interests..................................................... 143
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee....... 143
SECTION 2.10. Execution, Authentication and Delivery of Class R-II Certificates; Creation of
REMIC II Regular Interests.................................................... 143
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee..... 144
SECTION 2.12. Execution, Authentication and Delivery of REMIC III Certificates................. 144
SECTION 2.13. Acceptance of Loss of Value Reserve Fund by Trustee.............................. 144
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans............................................. 145
SECTION 3.02. Collection of Mortgage Loan Payments............................................. 000
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XXXXXXX 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts...................................................................... 151
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account, Collection Account, Interest
Reserve Account, Excess Liquidation Proceeds Account and Loss of Value Reserve
Fund.......................................................................... 153
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account, the Collection Account,
the Interest Reserve Account and the Excess Liquidation Proceeds Account...... 161
SECTION 3.06. Investment of Funds in the Collection Account, the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the Custodial Accounts, the
REO Accounts, the Interest Reserve Account and the Excess Liquidation Proceeds
Account....................................................................... 179
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage;
Environmental Insurance....................................................... 181
SECTION 3.08. Enforcement of Alienation Clauses................................................ 185
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals; Appraisal
Reduction Calculation......................................................... 192
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files.................... 196
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding Servicing
Advances...................................................................... 198
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain
Reports....................................................................... 206
SECTION 3.13. Annual Statement as to Compliance................................................ 211
SECTION 3.14. Reports on Assessment of Compliance with Servicing Criteria; Registered Public
Accounting Firm Attestation Reports........................................... 213
SECTION 3.15. Access to Certain Information.................................................... 216
SECTION 3.16. Title to REO Property; REO Accounts.............................................. 217
SECTION 3.17. Management of REO Property....................................................... 220
SECTION 3.18. Sale of Trust Mortgage Loans and Administered REO Properties..................... 223
SECTION 3.19. Additional Obligations of the Master Servicer and Special Servicer; Obligations
to Notify Ground Lessors and Hospitality Franchisors; the Special Servicer's
Right to Request the Master Servicer to Make Servicing Advance................ 228
SECTION 3.20. Modifications, Waivers, Amendments and Consents; Defeasance...................... 231
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record
Keeping....................................................................... 241
SECTION 3.22. Sub-Servicing Agreements......................................................... 242
SECTION 3.23. Representations and Warranties of the Master Servicer............................ 246
SECTION 3.24. Representations and Warranties of the Special Servicer........................... 248
SECTION 3.25. Certain Matters Regarding the Purchase of the Trust Mortgage Loan in a Loan
Combination................................................................... 249
SECTION 3.26. Application of Default Charges................................................... 250
SECTION 3.27. Certain Matters Relating to the 0000 X Xxxxxx Trust Mortgage Loan and the One
Alliance Center Trust Mortgage Loan........................................... 254
SECTION 3.28. Certain Matters Regarding Serviced Loan Combinations............................. 254
SECTION 3.29. Defense of Litigation............................................................ 256
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SECTION 3.30. Deliveries in Connection with Securitization of a Serviced Non-Trust Mortgage
Loan.......................................................................... 258
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.................................................................... 260
SECTION 4.02. Statements to Certificateholders and Others...................................... 271
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool................................... 279
SECTION 4.04. Allocations of Realized Losses and Additional Trust Fund Expenses................ 286
SECTION 4.05. Various Reinstatement Amounts.................................................... 287
SECTION 4.06. Calculations..................................................................... 289
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates................................................................. 290
SECTION 5.02. Registration of Transfer and Exchange of Certificates............................ 290
SECTION 5.03. Book-Entry Certificates.......................................................... 298
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates................................ 300
SECTION 5.05. Persons Deemed Owners............................................................ 300
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer..................... 301
SECTION 6.02. Continued Qualification and Compliance of Master Servicer; Merger, Consolidation
or Conversion of Depositor, Master Servicer or Special Servicer............... 301
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer....... 302
SECTION 6.04. Resignation of Master Servicer and the Special Servicer.......................... 303
SECTION 6.05. Rights of Depositor, Trustee and Serviced Non-Trust Mortgage Loan Noteholders in
Respect of the Master Servicer and the Special Servicer....................... 304
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee........ 304
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer........ 304
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer........ 305
SECTION 6.09. Designation of Special Servicer and Controlling Class Representative; Replacement
of Special Servicer by the Controlling Class and Others....................... 305
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate.................... 309
SECTION 6.11. Certain Powers of the Controlling Class Representative........................... 310
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SECTION 6.12. Certain Matters Regarding the Serviced Loan Combinations......................... 313
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and Outside Servicer Defaults.................................. 317
SECTION 7.02. Trustee to Act; Appointment of Successor......................................... 325
SECTION 7.03. Notification to Certificateholders and Others.................................... 326
SECTION 7.04. Waiver of Events of Default and Outside Servicer Defaults........................ 327
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default or Outside Servicer
Default....................................................................... 327
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee................................................................ 329
SECTION 8.02. Certain Matters Affecting Trustee................................................ 330
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates
or Mortgage Loans............................................................. 331
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.................................... 331
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee.................. 332
SECTION 8.06. Eligibility Requirements for Trustee............................................. 333
SECTION 8.07. Resignation and Removal of Trustee............................................... 334
SECTION 8.08. Successor Trustee................................................................ 335
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent.............................. 336
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.................................... 336
SECTION 8.11. Appointment of Custodians........................................................ 337
SECTION 8.12. Appointment of Authenticating Agents............................................. 338
SECTION 8.13. Appointment of Tax Administrators................................................ 339
SECTION 8.14. Access to Certain Information.................................................... 339
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports............ 341
SECTION 8.16. Representations and Warranties of Trustee........................................ 351
SECTION 8.17. Appointment of a Fiscal Agent.................................................... 352
SECTION 8.18. Representations and Warranties of Fiscal Agent................................... 353
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Trust Mortgage Loans........... 355
SECTION 9.02. Additional Termination Requirements.............................................. 358
SECTION 9.03. Outside Administered REO Properties.............................................. 359
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration............................................................. 360
SECTION 10.02. Grantor Trust Administration..................................................... 363
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment........................................................................ 366
SECTION 11.02. Recordation of Agreement; Counterparts........................................... 368
SECTION 11.03. Limitation on Rights of Certificateholders....................................... 368
SECTION 11.04. Governing Law; Consent to Jurisdiction........................................... 369
SECTION 11.05. Notices.......................................................................... 369
SECTION 11.06. Severability of Provisions....................................................... 370
SECTION 11.07. Grant of a Security Interest..................................................... 370
SECTION 11.08. Xxxxxx Act....................................................................... 371
SECTION 11.09. Successors and Assigns; Beneficiaries............................................ 371
SECTION 11.10. Article and Section Headings..................................................... 3721
SECTION 11.11. Notices to Rating Agencies....................................................... 372
SECTION 11.12. Complete Agreement............................................................... 374
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SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ ----------------------------------------------------------------
I Trust Mortgage Loan Schedule
II Representations and Warranties of the Depositor
III Exceptions to the Representations and Warranties of the
Depositor
IV Schedule of Environmentally Insured Mortgage Loans
V Schedule of Initial Deposit Mortgage Loans
VI Schedule of Mortgage Loans Secured by a Hospitality Property or
Nursing Facility
VII Schedule of Early Defeasance Mortgage Loans
VIII Schedule of Additional Mortgage Loan Origination Documents
IX Schedule of Additional Section 2.03 Documents
X Schedule of Reference Rates
XI Schedule of Class A-AB Planned Principal Balances
XII Schedule of Significant Obligor Financial Statement Recipients
XIII Schedule of Certain Earnout Trust Mortgage Loans
Exhibit No. Exhibit Description
------------ ----------------------------------------------------------------
A-1 Form of Class [A-1] [A-2] [A-AB] [A-3] [A-1A] Certificate
A-2 Form of Class [X-CP] [X-W] Certificate
A-3 Form of Class [X-CL] Certificate
A-4 Form of Class [A-M] [A-J] [B] [C] [D] [E] [F] Certificate
A-5 Form of Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T]
Certificate
A-6 Form of Class [R-I] [R-II] [R-III] [R-LR] Certificate
A-7 Form of Class V Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in
Rule 144A Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G-1 Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
G-2 Form II of Transferee Certificate in Connection with ERISA
(Book-Entry Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest
Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Form of UCC-1 Financing Statement Schedule
K Sub-Servicers in respect of which Sub-Servicing Agreements are
in effect or being negotiated as of the Closing Date
L-1 Form of Information Request/Investor Certification for Website
Access from Certificate
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Exhibit No. Exhibit Description
----------- ----------------------------------------------------------------
[Holder] [Owner]
L-2 Form of Information Request/Investor Certification for Website
Access from Prospective Investor
M Form of Defeasance Certification
N Form of Seller/Depositor Notification
O Form of Controlling Class Representative Confidentiality Agreement
P Form of Trustee Backup Certification
Q Form of Master Servicer Backup Certification
R Form of Special Servicer Backup Certification
S Form of Outside Master Servicer/Outside Trustee Notice
T Relevant Servicing Criteria Matrix
U Form of Exchange Act Reportable Event Notification
V Form of Master Servicer Certification
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This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of April 11, 2007, among STRUCTURED ASSET SECURITIES CORPORATION
II, as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer, LNR
PARTNERS, INC., as Special Servicer, and LASALLE BANK NATIONAL ASSOCIATION, as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be issued
hereunder in multiple Classes and which in the aggregate will evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat each Early
Defeasance Trust Mortgage Loan, if any, as the primary asset of a separate REMIC
for federal income tax purposes, and each such REMIC will be designated as a
"Loan REMIC". The Class R-LR Certificates (if issued in accordance with Section
2.06) will represent the sole class of "residual interests" in each and every
Loan REMIC, if any, for purposes of the REMIC Provisions under federal income
tax law. A separate Loan REMIC Regular Interest will, on the Closing Date, be
issued with respect to, and will thereafter relate to, each Early Defeasance
Trust Mortgage Loan, if any, included in a Loan REMIC. Each Loan REMIC Regular
Interest, if any, issued with respect to, and relating to, an Early Defeasance
Trust Mortgage Loan in a Loan REMIC, shall also relate to any successor REO
Trust Mortgage Loan with respect to such Early Defeasance Trust Mortgage Loan.
Each Loan REMIC Regular Interest, if any, shall: (i) bear a numeric designation
that is the same as the loan number for the related Early Defeasance Trust
Mortgage Loan set forth on the Trust Mortgage Loan Schedule; (ii) accrue
interest at the related per annum rate described in the definition of "Loan
REMIC Remittance Rate"; and (iii) have an initial Uncertificated Principal
Balance equal to the Cut-off Date Balance of the related Early Defeasance Trust
Mortgage Loan. The Legal Final Distribution Date of each Loan REMIC Regular
Interest, if any, is the Distribution Date immediately following the third
anniversary of the end of the remaining amortization term (as determined as of
the Closing Date) of the related Early Defeasance Trust Mortgage Loan. None of
the Loan REMIC Regular Interests (if issued in accordance with Section 2.06)
will be certificated. Notwithstanding the foregoing, however, if the Trust Fund
does not include Early Defeasance Trust Mortgage Loans, then (i) there will be
no Loan REMICs, (ii) neither the Class R-LR Certificates nor any Loan REMIC
Regular Interests will be issued and (iii) the provisions of Section 2.06(b)
will apply.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Trust Mortgage Loans (exclusive of the Early
Defeasance Trust Mortgage Loans, if any, and exclusive of any collections of
Additional Interest on the ARD Trust Mortgage Loans, if any, after their
respective Anticipated Repayment Dates), any Loan REMIC Regular Interests and
certain other related assets subject to this Agreement as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC I". The Class R-I Certificates will represent the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions under federal income
tax law. A separate REMIC I Regular Interest will, on the Closing Date, be
issued with respect to, and will thereafter relate to, each other Trust Mortgage
Loan included in REMIC I and each Loan REMIC Regular Interest, if any, included
in REMIC I. Each REMIC I Regular Interest issued with respect to, and relating
to, a Trust Mortgage Loan in REMIC I, shall also relate to any successor REO
Trust Mortgage Loan with respect to such Trust Mortgage Loan. Each REMIC I
Regular Interest issued with respect to, and relating to, any Loan REMIC Regular
Interest, shall also relate to the Early Defeasance Trust Mortgage Loan and any
successor REO Trust Mortgage Loan corresponding to such Loan REMIC Regular
Interest. Each REMIC I Regular Interest shall: (i) bear a numeric designation
that is the same
as the loan number for the related Trust Mortgage Loan set forth on the Trust
Mortgage Loan Schedule; (ii) accrue interest at a per annum rate described in
the definition of "REMIC I Remittance Rate"; and (iii) have an initial
Uncertificated Principal Balance equal to the Cut-off Date Balance of the
related Trust Mortgage Loan. The Legal Final Distribution Date of each of the
REMIC I Regular Interests is the Distribution Date immediately following the
third anniversary of the end of the remaining amortization term (as determined
as of the Closing Date) of the related Trust Mortgage Loan. None of the REMIC I
Regular Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The Legal Final Distribution Date for each REMIC
II Regular Interest is the latest Rated Final Distribution Date. None of the
REMIC II Regular Interests will be certificated. Each REMIC II Regular Interest
shall accrue interest at a per annum rate described in the definition of "REMIC
II Remittance Rate." The following table sets forth the designation, the initial
Uncertificated Principal Balance and the Corresponding Class of Principal
Balance Certificates for each of the REMIC II Regular Interests.
REMIC II REGULAR INTERESTS
Initial Uncertificated Corresponding Class of
Designation Principal Balance Principal Balance Certificates
----------- ---------------------- ------------------------------
A-1 (1) A-1
A-1-Prime (2) A-1
A-2-1 $ 22,200,000 X-0
X-0-0 $ 33,180,000 A-2
A-2-3 $ 71,839,800 A-2
A-2-4 $140,980,200 X-0
X-0-Xxxxx (0) X-0
X-XX (1) A-AB
A-AB-Prime (2) A-AB
A-3-1 $150,456,600 A-3
A-3-2 $ 53,518,200 A-3
A-3-3 $ 52,374,000 A-3
A-3-4 $510,600,000 A-3
A-3-Prime (2) A-3
A-1A-1 $ 8,166,000 A-1A
A-1A-2 $ 7,705,200 A-1A
A-1A-3 $ 15,828,000 A-1A
A-1A-4 $ 15,600,000 A-1A
A-1A-5 $ 67,200,000 A-1A
A-1A-6 $ 11,524,200 A-1A
A-1A-7 $113,935,800 A-1A
A-1A-8 $155,940,000 A-1A
A-1A-Prime (2) A-1A
A-M (1) A-M
A-M-Prime (2) A-M
A-J (1) A-J
A-J-Prime (2) A-J
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Initial Uncertificated Corresponding Class of
Designation Principal Balance Principal Balance Certificates
----------- ---------------------- ------------------------------
B (1) B
B-Prime (2) B
C-1 $28,398,600 C
C-2 $ 3,591,000 C
C-Prime (2) C
D-1 $21,132,600 D
D-2 $ 2,859,600 D
D-Prime (2) D
E-1 $ 377,400 E
E-2 $ 7,620,000 E
E-Prime (2) E
F (1) F
F-Prime (2) F
G-1 $ 3,491,400 G
G-2 $17,835,000 G
G-Prime (2) G
H (1) H
H-Prime (2) H
J (1) J
J-Prime (2) J
K (1) X
X-Prime (2) K
L (1) L
L-Prime (2) L
M (1) M
M-Prime (2) M
N (1) N
N-Prime (2) N
P (1) P
P-Prime (2) P
Q (1) Q
Q-Prime (2) Q
S (1) S
S-Prime (2) S
T (1) T
T-Prime (2) T
----------
(1) A principal amount equal to 60% of the initial Class Principal Balance of
the Corresponding Class of Principal Balance Certificates.
(2) A principal amount equal to 40% of the initial Class Principal Balance of
the Corresponding Class of Principal Balance Certificates.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The Class R-III Certificates will evidence the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. For federal income tax purposes, each Class of the
Regular Interest Certificates (exclusive of the Interest-Only Certificates) and
each REMIC III Component of each Class of Interest-Only
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Certificates will be designated as a separate "regular interest" in REMIC III.
The Legal Final Distribution Date for each Class of Regular Interest
Certificates (exclusive of the Interest-Only Certificates) and for each REMIC
III Component of each Class of Interest-Only Certificates is the latest Rated
Final Distribution Date. Each Class of Regular Interest Certificates and each
REMIC III Component of each Class of Interest-Only Certificates will accrue
interest at the per annum rate described in the definition of "Pass-Through
Rate." The following table sets forth the Class designation and original Class
Principal Balance for each Class of the Regular Interest Certificates.
REGULAR INTEREST CERTIFICATES
Class Original Class
Designation Principal Balance
----------- -----------------
Class A-1 $ 25,000,000
Class A-2 $ 447,000,000
Class A-AB $ 78,000,000
Class A-3 $1,278,248,000
Class A-1A $ 659,832,000
Class A-M $ 355,441,000
Class A-J $ 315,453,000
Class B $ 26,658,000
Class C $ 53,316,000
Class D $ 39,987,000
Class E $ 13,329,000
Class F $ 26,658,000
Class G $ 35,544,000
Class H $ 31,101,000
Class J $ 35,544,000
Class K $ 39,987,000
Class L $ 17,772,000
Class M $ 8,886,000
Class N $ 4,443,000
Class P $ 8,886,000
Class Q $ 4,443,000
Class S $ 13,329,000
Class T $ 35,544,860
Class X-CL (1)
Class X-CP (2)
Class X-W (3)
----------
(1) The Class X-CL Certificates will not have a Class Principal Balance and
will not entitle their Holders to receive distributions of principal. The
Class X-CL Certificates will have a Class Notional Amount which will be
equal to the aggregate of the Component Notional Amounts of the Class X-XX
XXXXX III Components from time to time. As more specifically provided
herein, interest in respect of the Class X-CL Certificates will consist of
the aggregate amount of interest accrued on the respective Component
Notional Amounts of the Class X-XX XXXXX III Components from time to time.
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(2) The Class X-CP Certificates will not have a Class Principal Balance and
will not entitle their Holders to receive distributions of principal. The
Class X-CP Certificates will have a Class Notional Amount which will be
equal to the aggregate of the Component Notional Amounts of the Class X-CP
REMIC III Components from time to time. As more specifically provided
herein, interest in respect of the Class X-CP Certificates will consist of
the aggregate amount of interest accrued on the respective Component
Notional Amounts of the Class X-CP REMIC III Components from time to time.
(3) The Class X-W Certificates will not have a Class Principal Balance and will
not entitle their Holders to receive distributions of principal. The Class
X-W Certificates will have a Class Notional Amount which will be equal to
the aggregate of the Component Notional Amounts of the Class X-W REMIC III
Components from time to time. As more specifically provided herein,
interest in respect of the Class X-W Certificates will consist of the
aggregate amount of interest accrued on the respective Component Notional
Amounts of the Class X-W REMIC III Components from time to time.
As provided herein, the Trustee shall take all actions necessary to
ensure that the portion of the Trust Fund consisting of the Grantor Trust
Assets, if any, maintains its status as a grantor trust under the Code. The
Class V Certificates (if issued in accordance with Section 2.05) will represent
the entire beneficial ownership of the Grantor Trust Assets. Notwithstanding the
foregoing, however, if the Trust Fund does not include ARD Trust Mortgage Loans,
then there will be no Grantor Trusts, the Class V Certificates will not be
issued and the provisions of Section 2.05(b) will apply.
The Initial Pool Balance will be $3,554,401,860.
There exists one (1) Trust Mortgage Loan (the "Extendicare Portfolio
Trust Mortgage Loan"), with a Cut-off Date Balance of $125,000,000, that is
evidenced by a Mortgage Note designated as Note A-3 and is, together with two
(2) other mortgage loans that will not be part of the Trust Fund (such two (2)
other mortgage loans, together, the "Extendicare Portfolio Non-Trust Mortgage
Loans"), secured on a collective basis by the same Mortgage(s) encumbering the
properties identified on the Trust Mortgage Loan Schedule as Extendicare
Portfolio (collectively, the "Extendicare Portfolio Mortgaged Property"). The
Extendicare Portfolio Non-Trust Mortgage Loans consist of: (i) one (1) mortgage
loan (the "Extendicare Portfolio Note A-1 Non-Trust Mortgage Loan") that has an
unpaid principal balance as of the Cut-off Date of $250,000,000, is evidenced by
a Mortgage Note designated as Note A-1 and is, as of the Closing Date, together
with various other commercial and multifamily mortgage loans, included in a
commercial mortgage securitization involving the issuance of the LB-UBS
Commercial Mortgage Trust 2006-C7, Commercial Mortgage Pass-Through Rate
Certificates, Series 2006-C7; and (ii) one (1) mortgage loan (the "Extendicare
Portfolio Note A-2 Non-Trust Mortgage Loan") that has an unpaid principal
balance as of the Cut-off Date of $125,000,000, is evidenced by a Mortgage Note
designated as Note A-2 and is, as of the Closing Date, together with various
other commercial and multifamily mortgage loans, included in a commercial
mortgage securitization involving the issuance of the LB-UBS Commercial Mortgage
Trust 2007-C1, Commercial Mortgage Pass-Through Rate Certificates, Series
2007-C1. The Extendicare Portfolio Trust Mortgage Loan and the Extendicare
Portfolio Non-Trust Mortgage Loans collectively constitute the "Extendicare
Portfolio Loan Combination" (which term shall include any group of successor REO
Mortgage Loans (or the similar concept under the Extendicare Portfolio Servicing
Agreement) with respect to those three (3) Mortgage Loans). The relative rights
of the respective lenders in respect of the Extendicare Portfolio Loan
Combination are set forth in a co-lender agreement dated as of November 13, 2006
(such co-lender agreement, as amended, restated, supplemented or otherwise
modified from time to time, the
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"Extendicare Portfolio Co-Lender Agreement"), between the holder of the Mortgage
Note for the Extendicare Portfolio Trust Mortgage Loan and the respective
holders of the Mortgage Notes for the Extendicare Portfolio Non-Trust Mortgage
Loans. As of the Closing Date, the entire Extendicare Portfolio Loan Combination
is to be serviced and administered in accordance with the Pooling and Servicing
Agreement dated as of November 13, 2006 (such pooling and servicing agreement,
as amended, restated, supplemented or otherwise modified from time to time,
together with any successor servicing agreement provided for under the
Extendicare Portfolio Co-Lender Agreement, the "Extendicare Portfolio Servicing
Agreement"), between SASCO II as depositor, LaSalle Bank National Association as
trustee, Wachovia Bank, National Association as master servicer and LNR
Partners, Inc. as special servicer.
There exists one (1) Trust Mortgage Loan (the "State Street Building
Trust Mortgage Loan"), with a Cut-off Date Balance of $25,500,000, that is
evidenced by a Mortgage Note designated as Note A-3 and is, together with two
(2) other mortgage loans that will not be part of the Trust Fund (such two (2)
other mortgage loans, collectively, the "State Street Building Non-Trust
Mortgage Loans"), secured on a collective basis by the same Mortgage encumbering
the property identified on the Trust Mortgage Loan Schedule as State Street
Building (the "State Street Building Mortgaged Property"). The State Street
Building Non-Trust Mortgage Loans consist of: (i) one (1) mortgage loan (the
"State Street Building Note A-2 Non-Trust Mortgage Loan") that has an unpaid
principal balance as of the Cut-off Date of $362,000,000, is evidenced by a
Mortgage Note designated as Note A-2, and is, as of the Closing Date, included
in a commercial mortgage securitization involving the issuance of the LB-UBS
Commercial Mortgage Trust 2007-C1, Commercial Mortgage Pass-Through Rate
Certificates, Series 2007-C1, and (ii) one (1) mortgage loan (the "State Street
Building Note A-1 Non-Trust Mortgage Loan") that has an unpaid principal balance
as of the Cut-off Date of $387,500,000, is evidenced by a Mortgage Note
designated as Note A-1, and is, as of the Closing Date, held by a separate
securitization trust. The State Street Building Trust Mortgage Loan and the
State Street Building Non-Trust Mortgage Loans collectively constitute the
"State Street Building Loan Combination" (which term shall include any group of
successor REO Mortgage Loans (or the similar concept under the State Street
Building Servicing Agreement) with respect to those three (3) Mortgage Loans).
The relative rights of the respective lenders in respect of the State Street
Building Loan Combination are set forth in a co-lender agreement, dated as of
December 27, 2006 (such co-lender agreement, as such may be amended, restated,
supplemented or otherwise modified from time to time hereafter, the "State
Street Building Co-Lender Agreement"), between the holder of the Mortgage Note
for the State Street Building Trust Mortgage Loan and the respective holders of
the Mortgage Notes for the State Street Building Non-Trust Mortgage Loans. As of
the Closing Date, the entire State Street Building Loan Combination is to be
serviced and administered in accordance with the Pooling and Servicing Agreement
dated as of February 12, 2007 (such pooling and servicing agreement, as amended,
restated, supplemented or otherwise modified from time to time, together with
any successor servicing agreement provided for under the State Street Building
Co-Lender Agreement, the "State Street Building Servicing Agreement"), between
SASCO II as depositor, LaSalle Bank National Association as trustee, KeyCorp
Real Estate Capital Markets, Inc. as master servicer and Midland Loan Services,
Inc. as special servicer.
There exists one (1) Trust Mortgage Loan (the "Sears Tower Trust
Mortgage Loan"), with a Cut-off Date Balance of $340,000,000, that is evidenced
by a Mortgage Note designated as Note A-1 and is, together with multiple other
mortgage loans that will not be part of the Trust Fund (such multiple other
mortgage loans, the "Sears Tower Non-Trust Mortgage Loans"), secured on a
collective basis by the same Mortgage encumbering the property identified on the
Trust Mortgage Loan Schedule
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as Sears Tower (the "Sears Tower Mortgaged Property"). The Sears Tower Non-Trust
Mortgage Loans consist of (i) one (1) or more mortgage loans (each, a "Sears
Tower Pari Passu Non-Trust Mortgage Loan") that have an aggregate unpaid
principal balance as of the Cut-off Date of $340,000,000, are each evidenced by
a separate Mortgage Note, and are each, as of the Closing Date, held by UBS Real
Estate Investments Inc. and (ii) one or more mortgage loans (each, a "Sears
Tower Subordinate Non-Trust Mortgage Loan") that have an aggregate unpaid
principal balance as of the Cut-off Date of $100,000,000, are each evidenced by
a separate Mortgage Note, and are each, as of the Closing Date, held by UBS Real
Estate Investments Inc.. The Sears Tower Trust Mortgage Loan and the Sears Tower
Non-Trust Mortgage Loans collectively constitute the "Sears Tower Loan
Combination" (which term shall include any group of successor REO Mortgage Loans
with respect to those multiple Mortgage Loans). The relative rights of the
respective lenders in respect of the Sears Tower Loan Combination are set forth
in a co-lender agreement dated as of April 11, 2007 (such co-lender agreement,
as amended, restated, supplemented or otherwise modified from time to time, the
"Sears Tower Co-Lender Agreement"), between the holder of the Mortgage Note for
the Sears Tower Trust Mortgage Loan and the holders the Mortgage Notes for the
Sears Tower Non-Trust Mortgage Loans. From and after the Closing Date, the Sears
Tower Loan Combination is to be serviced and administered in accordance with
this Agreement by the Master Servicer and the Special Servicer.
There exist another six (6) Trust Mortgage Loans (each, a "Serviced
Note A Trust Mortgage Loan") that are, in each such case, evidenced by a
mortgage note designated as Note A or Replacement Promissory Note A and,
together with one (1) or more other subordinate mortgage loan that will not be
part of the Trust Fund (each such other mortgage loan, a "Serviced Note B
Non-Trust Mortgage Loan"), secured on a collective basis by the same Mortgage(s)
encumbering the related property or group of properties identified in the table
following this paragraph. The Serviced Note A Trust Mortgage Loan and Serviced
Note B Non-Trust Mortgage Loan(s) that are secured by the same Mortgage(s) on a
particular Mortgaged Property or group of Mortgaged Properties will, together,
constitute a "Serviced A/B Loan Combination" (which term shall include any pair
or group of successor REO Mortgage Loans with respect to those two (2) or more
mortgage loans). The relative rights of the respective lenders in respect of
each Serviced A/B Loan Combination are set forth in a related co-lender
agreement or intercreditor agreement (each such co-lender agreement, as amended,
restated, supplemented or otherwise modified from time to time, an "A/B
Co-Lender Agreement"), between the holder of the Mortgage Note for the Serviced
Note A Trust Mortgage Loan included in such Serviced A/B Loan Combination and
the holder(s) of the Mortgage Note(s) for the Serviced Note B Non-Trust Mortgage
Loan(s) included in such Serviced A/B Loan Combination. From and after the
Closing Date, each Serviced A/B Loan Combination is to be serviced and
administered in accordance with this Agreement. The table below identifies each
Serviced A/B Loan Combination by name of the related Mortgaged Property or group
of Mortgaged Properties, the Cut-off Date Balance of the Serviced Note A Trust
Mortgage Loan included in the subject Serviced A/B Loan Combination, the
original principal balance of the Serviced Note B Non-Trust Mortgage Loan(s)
included in the subject Serviced A/B Loan Combination and the holder(s) (as of
the Closing Date) of the Serviced Note B Non-Trust Mortgage Loan(s) included in
the subject Serviced A/B Loan Combination.
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SERVICED A/B LOAN COMBINATIONS
Original Principal
Cut-off Date Balance of Balance of Serviced Holder of Serviced
Name of Mortgaged Property or Group of Serviced Note A Note B Non-Trust Note B Non-Trust
Mortgaged Properties(1) Trust Mortgage Loan Mortgage Loan(s) Mortgage Loan(2)
-------------------------------------- ----------------------- --------------------- ----------------------
1. Xxxxxxx Maryland Portfolio II $185,000,000 $32,000,000 (Note B) Arbor Realty SR, Inc.
2. Xxxxx Building $ 88,000,000 $70,000,000 (Note B) Teachers Assurance
and Annuity
Association of America
3. 0000 X Xxxxxx $ 86,700,000 $15,165,572 (Note B-1 Greenwich Capital
and Note B-2) Financial Products,
Inc. (Note B-1)/Xxxxxx
Brothers Bank, FSB
(Note B-2)
4. 0000 Xxxxxxxxxxxx Xxxxxx $ 84,354,091 $27,645,909 (Note B) Xxxxxx Brothers Bank,
FSB
5. 0000 Xxxxxxxxxxxx Xxxxxx $ 68,700,000 $19,300,000 (Note B) Xxxxxx Brothers Bank,
FSB
6. Fed Ex Portfolio $ 30,800,000 $1,160,000 (Note B) Xxxxxx Brothers
Holdings Inc.
----------
(1) Reflects property identified by that name on the Trust Mortgage Loan
Schedule.
(2) As of Closing Date.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee hereby
agree, in each case, as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN ADJUSTMENTS TO THE PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"2445 M Street Loan Combination" shall mean the Loan Combination that
includes the 0000 X Xxxxxx Trust Mortgage Loan.
"2445 M Street Mortgaged Property" shall mean the Mortgaged Property
identified on the Trust Mortgage Loan Schedule as 0000 X Xxxxxx.
"2445 M Street Non-Trust Mortgage Loans" shall mean, together, the
0000 X Xxxxxx Xxxx X-0 Non-Trust Mortgage Loan and the 0000 X Xxxxxx Xxxx X-0
Non-Trust Mortgage Loan.
"2445 M Street Note A-1 Trust Mortgage Loan" shall mean the portion of
the 0000 X Xxxxxx Trust Mortgage Loan that is evidenced by the promissory note
designated note A-1.
"2445 M Street Note A-2 Trust Mortgage Loan" shall mean the portion of
the 0000 X Xxxxxx Trust Mortgage Loan that is evidenced by the promissory note
designated note A-2.
"2445 M Street Note B-1 Non-Trust Mortgage Loan" shall mean the
Non-Trust Mortgage Loan that is evidenced by the promissory note designated note
B-1, and is secured by one or more mortgages, deeds of trust, deeds to secure
debt or similar instruments encumbering the 0000 X Xxxxxx Mortgaged Property.
"2445 X Xxxxxx Xxxx X-0 Non-Trust Mortgage Loan" shall mean the
Non-Trust Mortgage Loan that is evidenced by the promissory note designated note
B-2, and is secured by one or more mortgages, deeds of trust, deeds to secure
debt or similar instruments encumbering the 0000 X Xxxxxx Mortgaged Property.
"2445 M Street Trust Mortgage Loan Portion" shall mean the 0000 X
Xxxxxx Note A-1 Trust Mortgage Loan or the 0000 X Xxxxxx Note A-2 Trust Mortgage
Loan, as applicable.
"2445 M Street Trust Mortgage Loan" shall mean the Trust Mortgage Loan
that is identified on the Trust Mortgage Loan Schedule by loan number 11, is
collectively evidenced by two (2) separate promissory notes designated as note
A-1 and note A-2, and is secured by one or more mortgages, deeds of trust, deeds
to secure debt or similar instruments encumbering the 0000 X Xxxxxx Mortgaged
Property.
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"X/X Xx-Xxxxxx Agreement" shall have the meaning assigned thereto in
the Preliminary Statement.
"AAA" shall have the meaning assigned thereto in Section 2.03(i).
"AAA Rules" shall have the meaning assigned thereto in Section
2.03(i).
"Acceptable Insurance Default" shall mean, with respect to any
Serviced Mortgage Loan, any default under the related loan documents resulting
from (a) the exclusion of acts of terrorism from coverage under the related all
risk casualty insurance policy maintained on the subject Mortgaged Property and
(b) the related Mortgagor's failure to obtain insurance that specifically covers
acts of terrorism, but only if the Special Servicer has determined, in its
reasonable judgment in accordance with the Servicing Standard (subject to
Section 6.11 and/or Section 6.12, in each case if and as applicable), that (i)
such insurance is not available at commercially reasonable rates and the subject
hazards are not commonly insured against at the time for real properties similar
to the subject Mortgaged Property and located in and around the region in which
the subject Mortgaged Property is located, or (ii) such insurance is not
available at any rate. Subject to the Servicing Standard, in making any of the
determinations under and in accordance with subclause (i) or (ii) of this
definition, the Special Servicer shall be entitled to reasonably rely on the
opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of a Class of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth of the product
of (i) the annual Pass-Through Rate applicable to such Class of Certificates for
such Interest Accrual Period, multiplied by (ii) the Class Principal Balance of
such Class of Certificates outstanding immediately prior to the related
Distribution Date; and (b) in the case of a Class of Interest-Only Certificates
for any Interest Accrual Period, the aggregate amount of Accrued Component
Interest with respect to all of the REMIC III Components of such Class of
Certificates for such Interest Accrual Period. The Regular Interest Certificates
shall accrue interest on a 30/360 Basis.
"Accrued Component Interest" shall mean the interest accrued from time
to time with respect to any REMIC III Component of a Class of Interest-Only
Certificates, the amount of which interest shall equal, for any Interest Accrual
Period, one-twelfth of the product of (i) the annual Pass-Through Rate
applicable to such REMIC III Component for such Interest Accrual Period,
multiplied by (ii) the Component Notional Amount of such REMIC III Component
outstanding immediately prior to the related Distribution Date. Each REMIC III
Component of a Class of Interest-Only Certificates shall accrue interest on a
30/360 Basis.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property or any interest therein is considered to be
acquired by (or, in the case of an Outside Administered REO Property, acquired
for the benefit of) the Trust Fund within the meaning of Treasury regulations
section 1.856-6(b)(1), which shall be the first day on which the Trust Fund is
treated as the owner of such REO Property or an interest therein for federal
income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any interest accrual
period in a year assumed to consist of 360 days.
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"Actual/360 Equivalent of the Related Outside Servicing Fee Rate"
shall mean, in the case of an Outside Servicing Fee that is calculated on a
30/360 Basis, for any Interest Accrual Period, a rate per annum equal to the
product of (a) the applicable Outside Servicing Fee Rate, multiplied by (b) a
fraction, expressed as a percentage, the numerator of which is 30 and the
denominator of which is the number of days in such Interest Accrual Period.
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Interest" shall mean, with respect to any ARD Mortgage
Loan after its Anticipated Repayment Date, subject to Section 2.05(b), all
interest accrued on the principal balance of such ARD Mortgage Loan at the
Additional Interest Rate and, if so provided in the related loan documents,
compounded at the related Mortgage Rate (the payment of which interest shall,
under the terms of such ARD Mortgage Loan, be deferred until the entire
outstanding principal balance thereof has been paid). For purposes of this
Agreement, Additional Interest on an ARD Mortgage Loan or any successor REO
Mortgage Loan with respect thereto shall be deemed not to constitute principal
or any portion thereof and shall not be added to the unpaid principal balance or
Stated Principal Balance of such ARD Mortgage Loan or any successor REO Mortgage
Loan with respect thereto, notwithstanding that the terms of the related loan
documents so permit. To the extent that any Additional Interest is not paid on a
current basis, it shall, for purposes of this Agreement, be deemed to be
deferred interest (regardless of whether it is added to principal outstanding
with respect to the related ARD Mortgage Loan in accordance with the related
loan documents).
"Additional Interest Rate" shall mean, with respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, subject to Section 2.05(b),
the incremental increase in the Mortgage Rate for such loan resulting from the
passage of such Anticipated Repayment Date.
"Additional Item 1123 Servicer" shall mean any Additional Servicer
that meets any of the criteria in Item 1108(a)(2)(i) through (iii) of Regulation
AB with respect to the Subject Securitization Transaction.
"Additional Servicer" shall mean any Servicer, other than the Master
Servicer, the Special Servicer and the Trustee.
"Additional Trust Fund Expense" shall mean any expense that: (i) is
incurred with respect to the Trust Fund or any particular asset therein; (ii) is
not paid by or on behalf of any Mortgagor and is not covered by a
nonreimbursable payment by any party hereto; (iii) is not otherwise included in
the calculation of a Realized Loss in respect of any particular Trust Mortgage
Loan or REO Trust Mortgage Loan; and (iv) would result or has resulted, as the
case may be, in the Holders of Regular Interest Certificates receiving less than
the full amount of principal and/or Distributable Certificate Interest to which
they are entitled on any Distribution Date.
"Adjusted Actual/360 Accrued Interest Amount" shall mean, with respect
to any Loan REMIC Regular Interest or REMIC I Regular Interest that relates to
an Interest Reserve Mortgage Loan or an Interest Reserve REO Mortgage Loan, for
any Interest Accrual Period, an amount of interest equal to the product of (a)
the Mortgage Rate for the related Trust Mortgage Loan in effect as of the
Closing Date (without regard to any modifications, extensions, waivers or
amendments of the related Trust Mortgage Loan subsequent to the Closing Date,
and if such related Trust Mortgage Loan is an Outside Serviced Trust Mortgage
Loan, reduced either by the related Outside Servicing Fee Rate, if the related
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Outside Servicing Fee is calculated on an Actual/360 Basis, or by the Actual/360
Equivalent of the Related Outside Servicing Fee Rate, if the related Outside
Servicing Fee is calculated on a 30/360 Basis), multiplied by (b) a fraction,
the numerator of which is the number of days in such Interest Accrual Period,
and the denominator of which is 360, multiplied by (c) the Uncertificated
Principal Balance of such Loan REMIC Regular Interest or REMIC I Regular
Interest, as the case may be, immediately prior to the Distribution Date that
corresponds to such Interest Accrual Period; provided that, if the subject
Interest Accrual Period ends during (x) the calendar month of January (except in
a leap year) or (y) the calendar month of February, then the amount of interest
calculated with respect to any particular Loan REMIC Regular Interest or REMIC I
Regular Interest pursuant to this definition for such Interest Accrual Period
without regard to this proviso shall be decreased by the Interest Reserve
Amount, if any, with respect to the related Interest Reserve Mortgage Loan or
Interest Reserve REO Mortgage Loan, as the case may be, transferred (in
accordance with Section 3.04(c)) from the Collection Account to the Interest
Reserve Account in the calendar month in which such Interest Accrual Period
ends; and provided, further, that, if the subject Interest Accrual Period ends
during the calendar month of March, then the amount calculated with respect to
any particular Loan REMIC Regular Interest or REMIC I Regular Interest pursuant
to this definition for such Interest Accrual Period without regard to this
proviso shall be increased by the Interest Reserve Amount(s), if any, with
respect to the related Interest Reserve Mortgage Loan or Interest Reserve REO
Mortgage Loan, as the case may be, transferred (in accordance with Section
3.05(c)) from the Interest Reserve Account to the Collection Account in the
calendar month in which such Interest Accrual Period ends.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to (a) the Principal Distribution Amount for
such Distribution Date, plus (b) all amounts to be added to such Principal
Distribution Amount pursuant to Section 1.03(c) for such Distribution Date,
minus (c) all amounts to be subtracted from such Principal Distribution Amount
pursuant to Section 1.03(b) for such Distribution Date.
"Adjusted REMIC II Remittance Rate" shall mean, with respect to any
REMIC II Regular Interest, for any Interest Accrual Period, an annual rate equal
to the annual Pass-Through Rate in effect during such Interest Accrual Period
for the Class of Principal Balance Certificates as to which such REMIC II
Regular Interest is the sole Corresponding REMIC II Regular Interest or is one
of two or more Corresponding REMIC II Regular Interests, as applicable.
"Administered REO Property" shall mean any REO Property other than, if
applicable, any Outside Administered REO Property.
"Administrative Cost Rate" shall mean: (a) with respect to each
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), the sum of (i) the related Outside Servicing Fee Rate,
(ii) the Trustee Fee Rate, and (iii) the related Master Servicing Fee Rate; and
(b) with respect to each other Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto), the corresponding rate per annum specified
as the "Administrative Cost Rate" on the Trust Mortgage Loan Schedule, which,
for each Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), is equal to the sum of the related Master Servicing Fee Rate
and the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
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"Adverse Grantor Trust Event" shall mean, subject to Section 2.05(b),
any endangerment to the status of the Grantor Trust as a grantor trust under the
Grantor Trust Provisions or any imposition of a tax on the Grantor Trust or any
of its assets or transactions.
"Adverse Rating Event" shall mean, with respect to any Class of
Certificates or any class of Specially Designated Non-Trust Mortgage Loan
Securities, as of any date of determination, the qualification, downgrade or
withdrawal of any rating then assigned to such Class of Certificates or such
class of Specially Designated Non-Trust Mortgage Loan Securities, as the case
may be, by either Rating Agency or, if applicable, by Xxxxx'x.
"Adverse REMIC Event" shall mean, with respect to any REMIC Pool, any
endangerment of the status of such REMIC Pool as a REMIC under the REMIC
Provisions or, except as permitted by Section 3.17(a), any imposition of a tax
on such REMIC Pool or any of its assets or transactions (including the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
prohibited contributions set forth in Section 860G(d) of the Code and/or the tax
on "net income from foreclosure property" as defined in Section 860G(c) of the
Code).
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control," when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement, together
with all amendments hereof and supplements hereto.
"Annual Assessment Report" shall have the meaning assigned thereto in
Section 3.14.
"Annual Attestation Report" shall have the meaning assigned thereto in
Section 3.14.
"Annual Statement of Compliance" shall have the meaning assigned
thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, subject to Section 2.05(b), the date specified in the related
loan documents after which the Mortgage Rate for such ARD Mortgage Loan will
increase as specified in the related Mortgage Note.
"Appraisal Reduction Amount" shall mean, with respect to any Required
Appraisal Loan, an amount (calculated by the Special Servicer initially as of
the related Determination Date immediately following the later of the date on
which the subject Serviced Trust Mortgage Loan or Serviced Loan Combination, as
applicable, became a Required Appraisal Loan and the date on which the
applicable Required Appraisal was obtained, and thereafter monthly on each
subsequent related Determination Date during the period that the subject
Serviced Trust Mortgage Loan, REO Trust Mortgage Loan or Serviced Loan
Combination, as applicable, remains a Required Appraisal Loan) equal to the
excess, if any, of: (a) the sum of, without duplication, (i) the Stated
Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer, the Trustee or a
Fiscal Agent, all accrued and unpaid interest on such Required Appraisal Loan
through the most recent
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Due Date prior to the date of calculation (exclusive of any portion thereof that
represents Additional Interest and/or Default Interest), (iii) all accrued and
unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of
such Required Appraisal Loan, (iv) all related unreimbursed Advances made by or
on behalf of (plus all accrued interest on such Advances payable to) the Master
Servicer and/or any other party hereto with respect to such Required Appraisal
Loan, (v) if such Required Appraisal Loan consists of a Serviced Loan
Combination that includes a Serviced Pari Passu Non-Trust Mortgage Loan, and if
such Serviced Pari Passu Non-Trust Mortgage Loan was included in a Non-Trust
Mortgage Loan Securitization Trust, any unpaid interest made on delinquency
advances with respect to such Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto under the related Non-Trust Mortgage Loan
Securitization Agreement, (v) any other unpaid items that could become
Additional Trust Fund Expenses in respect of such Required Appraisal Loan, and
(vi) all currently due and unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents, and any unfunded improvement or other
applicable reserves, in respect of the related Mortgaged Property or REO
Property, as the case may be (in each case, net of any amounts escrowed with the
Master Servicer or the Special Servicer for such items); over (b) the Required
Appraisal Value. Notwithstanding the foregoing, if (i) any Serviced Trust
Mortgage Loan or Serviced Loan Combination becomes a Required Appraisal Loan,
(ii) either (A) no Required Appraisal or update thereof has been obtained or
conducted, as applicable, with respect to the related Mortgaged Property during
the 12-month period prior to the date such Serviced Trust Mortgage Loan or
Serviced Loan Combination, as the case may be, became a Required Appraisal Loan
or (B) there shall have occurred since the date of the most recent Required
Appraisal or update thereof a material change in the circumstances surrounding
the related Mortgaged Property that would, in the Special Servicer's reasonable
judgment, materially affect the value of the related Mortgaged Property, and
(iii) no Required Appraisal is obtained or conducted, as applicable, in
accordance with Section 3.09(a), within 60 days after such Serviced Trust
Mortgage Loan or Serviced Loan Combination, as the case may be, became a
Required Appraisal Loan, then (x) until such Required Appraisal or update is
obtained or conducted, as applicable, in accordance with Section 3.09(a), the
Appraisal Reduction Amount for such Required Appraisal Loan shall equal 25% of
the Stated Principal Balance of such Required Appraisal Loan, and (y) upon
receipt or performance, as applicable, in accordance with Section 3.09(a), of
such Required Appraisal or update thereof by the Special Servicer, the Appraisal
Reduction Amount for such Required Appraisal Loan shall be recalculated in
accordance with the preceding sentence of this definition. For purposes of this
definition, each Required Appraisal Loan that is part of a Cross-Collateralized
Group shall be treated separately for the purposes of calculating any Appraisal
Reduction Amount.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date the subject Serviced Trust Mortgage Loan or Serviced Loan Combination, as
applicable, ceases to be a Required Appraisal Loan, and no Appraisal Reduction
Amount shall exist as to any Serviced Trust Mortgage Loan (or any successor REO
Trust Mortgage Loan with respect thereto) or any Serviced Loan Combination after
it has been paid in full, liquidated, repurchased or otherwise disposed of.
Any Appraisal Reduction Amount with respect to a Serviced Loan
Combination shall be calculated, and allocated between or among, as the case may
be, the respective Mortgage Loans comprising the subject Serviced Loan
Combination, by the Special Servicer pursuant to this Agreement and consistent
with the related Co-Lender Agreement; and the related Serviced Non-Trust
Mortgage Loan Noteholder(s) shall be entitled to rely on such calculations, and
the allocations to the subject Serviced Non-Trust Mortgage Loan(s) or any
successor REO Trust Mortgage Loan(s) with respect thereto, as reported to it or
them, as the case may be, by the Special Servicer.
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Notwithstanding the foregoing, in the case of an Outside Serviced Loan
Combination, the term "Appraisal Reduction Amount" shall have the meaning
assigned to that term or any analogous term in the related Outside Servicing
Agreement. Further notwithstanding the foregoing, any Appraisal Reduction Amount
with respect to an Outside Serviced Loan Combination shall be calculated, and
allocated between the respective Mortgage Loans comprising such Outside Serviced
Loan Combination by the applicable Outside Servicer pursuant to the related
Outside Servicing Agreement; and the parties hereto shall be entitled to rely on
such calculations, and the allocations to the Trust Mortgage Loan or REO Trust
Mortgage Loan, as applicable, in such Outside Serviced Loan Combination, as
reported to them by the applicable Outside Servicer.
"Appraised Value" shall mean, with respect to each Mortgaged Property
or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser that is
contained in the related Servicing File or, in the case of any such property
with or that had, as the case may be, an allocated loan amount of, or securing a
Trust Mortgage Loan or relating to an REO Trust Mortgage Loan, as the case may
be, with a Stated Principal Balance of, less than $2,000,000, either (a) the
most recent appraisal or update thereof that is contained in the related
Servicing File or (b) the most recent "desktop" value estimate performed by the
Special Servicer that is contained in the related Servicing File.
"Arbitration Commencement Date" shall have the meaning assigned
thereto in Section 2.03(i).
"ARD Mortgage Loan" shall mean, subject to Section 2.05(b), any
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) that
provides that if the unamortized principal balance thereof is not repaid by a
date certain set forth in the related loan documents, such Mortgage Loan (or
successor REO Mortgage Loan) will accrue additional interest at the rate
specified in the related Mortgage Note and the related Mortgagor is required to
apply certain excess monthly cash flow generated by the related Mortgaged
Property to the repayment of the outstanding principal balance on such Mortgage
Loan. If none of the Trust Mortgage Loans are reflected on the Trust Mortgage
Loan Schedule as being ARD Mortgage Loans, then Section 2.05(b) shall apply.
"ARD Trust Mortgage Loan" shall mean any Trust Mortgage Loan that is
an ARD Mortgage Loan. If none of the Trust Mortgage Loans are reflected on the
Trust Mortgage Loan Schedule as being ARD Mortgage Loans, then Section 2.05(b)
shall apply.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Mortgage Loan(s).
"Assumed Monthly Payment" shall mean: (a) with respect to any Balloon
Mortgage Loan delinquent in respect of its Balloon Payment, for each Due Date
coinciding with or following its then Maturity Date as of which such Mortgage
Loan remains outstanding and part of the Trust Fund (or, in the case of a
Serviced Non-Trust Mortgage Loan, if applicable, as of which (i) such Non-Trust
Mortgage Loan remains outstanding and (ii) the related Trust Mortgage Loan
remains part of the Trust Fund) (provided that such Mortgage Loan was not paid
in full, and no other Liquidation Event occurred in respect thereof, before the
end of the related Collection Period in which such Maturity Date occurs), the
scheduled monthly payment of principal and/or interest deemed to be due in
respect of such Mortgage Loan on such Due Date equal to the amount that would
have been due in respect thereof on such Due
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Date if such Mortgage Loan had been required to continue to accrue interest
(other than Default Interest and Additional Interest) in accordance with its
terms, and to pay principal in accordance with the amortization schedule (if
any), in effect immediately prior to, and without regard to the occurrence of,
such Maturity Date; and (b) with respect to any REO Mortgage Loan, for any Due
Date as of which the related REO Property (or any interest therein) remains part
of the Trust Fund, the scheduled monthly payment of principal and/or interest
deemed to be due in respect thereof on such Due Date equal to the Monthly
Payment (or, in the case of a Balloon Mortgage Loan described in clause (a) of
this definition, the Assumed Monthly Payment) that was due (or deemed due) in
respect of the related Mortgage Loan on the last Due Date prior to the related
Mortgaged Property becoming an REO Property.
"ASTM" shall mean the American Society for Testing and Materials.
"Authenticating Agent" shall mean any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to:
(a) the sum, without duplication, of (i) the aggregate amount of all
payments and other collections on or with respect to the Trust Mortgage
Loans and any REO Properties (including Loss of Value Payments and, in the
case of the initial Distribution Date, any Initial Deposits) that (A) were
Received by the Trust as of the end of the related Collection Period and
(B) are on deposit in the Collection Account as of 12:00 noon (New York
City time) on such Distribution Date, (ii) the aggregate amount of any P&I
Advances made by the Master Servicer, the Trustee and/or a Fiscal Agent
with respect to the Mortgage Pool for distribution on the Certificates on
such Distribution Date pursuant to Section 4.03, (iii) the aggregate amount
deposited by the Master Servicer in the Collection Account for such
Distribution Date pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls on the Mortgage Pool, (iv) to the extent not included
in the amount described in clause (a)(i) of this definition, the aggregate
amount transferred from the Excess Liquidation Proceeds Account to the
Collection Account pursuant to Section 3.05(d) in respect of such
Distribution Date, (v) to the extent not included in the amount described
in clause (a)(i) of this definition, if such Distribution Date is the Final
Distribution Date, the aggregate amount transferred from the Loss of Value
Reserve Fund to the Collection Account pursuant to Section 3.05(e) in
respect of such Distribution Date, and (vi) to the extent not included in
the amount described in clause (a)(i) of this definition, if such
Distribution Date occurs during the calendar month of March, the aggregate
of the Interest Reserve Amounts, if any, transferred from the Interest
Reserve Account to the Collection Account in respect of the Interest
Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans for
distribution on such Distribution Date; net of
(b) the portion of the aggregate amount described in clause (a) of
this definition that represents one or more of the following--(i) scheduled
Monthly Payments that are due on a Due Date following the end of the
related Collection Period (or, in the case of a scheduled Monthly Payment
that is due on a Due Date in the same month as such Distribution Date but
subsequent to the end of the related Collection Period, following the end
of the calendar month in which such Distribution Date occurs), (ii) any
amounts payable or reimbursable to any Person from the Collection Account
pursuant to clauses (ii) through (v) and (viii) of Section 3.05(b),
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(iii) Prepayment Consideration and/or Additional Interest, (iv) if such
Distribution Date occurs during the calendar month of January (except in a
leap year) or during the calendar month of February, the Interest Reserve
Amounts with respect to the Interest Reserve Mortgage Loans and any
Interest Reserve REO Mortgage Loans to be withdrawn from the Collection
Account and deposited into the Interest Reserve Account in respect of such
Distribution Date and held for future distribution, all pursuant to Section
3.04(c), and (v) amounts deposited in the Collection Account in error;
provided that the Available Distribution Amount for the Final Distribution Date
shall consist of all amounts on deposit in the Collection Account as of the time
distributions are to be made to Certificateholders on the Final Distribution
Date, exclusive of any portion of such amounts that are payable or reimbursable
to any Person from the Collection Account pursuant to clauses (ii) through (v)
and (viii) of Section 3.05(b), that were deposited in the Collection Account in
error or that represent Prepayment Consideration and/or Additional Interest.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date and as to which, in accordance with such terms, the Scheduled Payment due
on its Stated Maturity Date is significantly larger than the Scheduled Payment
due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Mortgage
Loan as of any date of determination, the payment, other than any regularly
scheduled monthly payment, due with respect to such Mortgage Loan at maturity.
"Balloon Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is a Balloon Mortgage Loan.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the case
may be, as of such date of determination, over (b) the aggregate of the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered in the
name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Book-Entry Subordinate Certificate" shall mean any Subordinate
Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York or in any of the cities
in which the Corporate Trust Office
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of the Trustee, the Primary Servicing Office of the Master Servicer or the
Primary Servicing Office of the Special Servicer are located, are authorized or
obligated by law or executive order to remain closed.
"Cash-Based Permitted Purchase" shall mean any Permitted Purchase
other than in connection with the exchange of all the Certificates for all the
Trust Mortgage Loans and REO Properties pursuant to Section 9.01.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the LB-UBS Commercial Mortgage
Trust 2007-C2, Commercial Mortgage Pass-Through Certificates, Series 2007-C2, as
executed by the Certificate Registrar and authenticated and delivered hereunder
by the Authenticating Agent.
"Certificate Factor" shall mean, with respect to any Class of Regular
Interest Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to six places, the numerator of which is the then current
Class Principal Balance or Class Notional Amount, as the case may be, of such
Class of Regular Interest Certificates, and the denominator of which is the
Original Class Principal Balance or Original Class Notional Amount, as the case
may be, of such Class of Regular Interest Certificates.
"Certificate Notional Amount" shall mean, with respect to any
Interest-Only Certificate, as of any date of determination, the then notional
amount of such Certificate equal to the product of (a) the then Certificate
Factor for the Class of Interest-Only Certificates to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant to
Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant to
Section 5.02.
"Certificateholder" shall mean the Person in whose name a Certificate
is registered in the Certificate Register, except that: (i) neither a
Disqualified Organization nor a Disqualified Non-United States Tax Person shall
be Holder of a Residual Interest Certificate for any purpose hereof; and (ii)
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, any Fiscal Agent or the
Trustee in its respective capacity as such, any Certificate registered in the
name
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of the Depositor, the Master Servicer, the Special Servicer, any Fiscal
Agent or the Trustee, as the case may be, or any Certificate registered in the
name of any of its Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been obtained
(provided that the provisions of this clause (ii) are not intended to limit the
rights of the Controlling Class Representative (which may be an Affiliate of the
Special Servicer) as are specifically set forth in this Agreement with respect
to any consent, approval or waiver required or permitted to be made by the
Controlling Class Representative or any rights under Section 6.09 with respect
to any election, removal or replacement of the Special Servicer or the
Controlling Class Representative). The Certificate Registrar shall be entitled
to request and rely upon a certificate of the Depositor, the Master Servicer or
the Special Servicer in determining whether a Certificate is registered in the
name of an Affiliate of such Person. All references herein to
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Certificateholder" only the
Person in whose name a Certificate is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the Distribution
Date Statement, the Mortgage Pool Data Update Report, the Loan Payoff
Notification Report, the CMSA Investor Reporting Package and any reports
comparable to the foregoing with respect to an Outside Serviced Trust Mortgage
Loan or any related REO Property that are deliverable to the Trustee (or to the
Master Servicer on behalf of the Trustee), as holder of the Mortgage Note for
such Outside Serviced Trust Mortgage Loan.
"Certifying Officer" shall have the meaning assigned thereto in
Section 8.15(d).
"Certifying Party" shall have the meaning assigned thereto in Section
8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing the
same alphabetic or alphanumeric, as applicable, class designation or all of the
Holders of Certificates bearing the same alphabetic or alphanumeric, as
applicable, class designation, as the context may require.
"Class A Certificate" shall mean any of the Class X-0, Xxxxx X-0,
Class A-AB, Class A-3, Class A-1A, Class A-M and Class A-J Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-1A Certificate" shall mean any one of the Certificates with a
"Class A-1A" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
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"Class A-3 Certificate" shall mean any one of the Certificates with a
"Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-AB Certificate" shall mean any one of the Certificates with a
"Class A-AB" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-AB Planned Principal Balance" shall mean, with respect to any
Distribution Date, the targeted Class Principal Balance of the Class A-AB
Certificates for such date set forth on Schedule XI attached hereto.
"Class A-J Certificate" shall mean any one of the Certificates with a
"Class A-J" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-M Certificate" shall mean any one of the Certificates with a
"Class A-M" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class B Certificate" shall mean any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class B Through T Certificate" shall mean any Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P, Class Q, Class S or Class T Certificate.
"Class C Certificate" shall mean any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
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"Class H Certificate" shall mean any of the Certificates with a "Class
H" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a "Class
K" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a "Class
L" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate" shall mean any of the Certificates with a "Class
M" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a "Class
N" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount" shall mean the aggregate hypothetical or
notional amount on which a Class of the Interest-Only Certificates accrues or is
deemed to accrue interest from time to time. As of any date of determination,
the Class Notional Amount of each Class of Interest-Only Certificates shall
equal the then aggregate of the Component Notional Amounts of all the REMIC III
Components of such Class of Interest-Only Certificates; provided that, for
reporting purposes, the Class Notional Amount of the Class X-CP Certificates
shall be calculated in accordance with the Prospectus Supplement.
"Class P Certificate" shall mean any of the Certificates with a "Class
P" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates. As
of the Closing Date, the Class Principal Balance of each Class of Principal
Balance Certificates shall equal the Original Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further reduced (subject to
Section 4.05) by the amount of any Realized Losses and Additional Trust Fund
Expenses deemed allocated thereto on such Distribution Date pursuant to Section
4.04. On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be increased by the related Class Principal
Reinstatement Amount, if any, for such Distribution Date.
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"Class Principal Reinstatement Amount" shall have the meaning assigned
thereto in Section 4.05(a).
"Class Q Certificate" shall mean any of the Certificates with a "Class
Q" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class R-I Certificate" shall mean any of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate" shall mean any of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-III Certificate" shall mean any of the Certificates with a
"Class R-III" designation on the face thereof, substantially in the form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions.
"Class R-LR Certificate" shall mean, subject to Section 2.06(b), any
of the Certificates with a "Class R-LR" designation on the face thereof,
substantially in the form of Exhibit A-6 attached hereto, and evidencing a
portion of the sole class of "residual interests" in each Loan REMIC for
purposes of the REMIC Provisions.
"Class S Certificate" shall mean any of the Certificates with a "Class
S" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class T Certificate" shall mean any of the Certificates with a "Class
T" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class V Certificate" shall mean, subject to Section 2.05(b), any of
the Certificates with a "Class V" designation on the face thereof, substantially
in the form of Exhibit A-7 attached hereto, and evidencing a pro rata undivided
interest in the Grantor Trust Assets.
"Class V Sub-Account" shall mean, subject to Section 2.05(b), a
sub-account of the Collection Account established pursuant to Section 3.04(b),
which sub-account shall constitute an asset of the Trust Fund and the Grantor
Trust, but not an asset of any REMIC Pool.
"Class X-CL Certificate" shall mean any one of the Certificates with a
"Class X-CL" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of multiple separate
"regular interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-XX XXXXX III Component" shall mean any of the multiple
separate "regular interests" in REMIC III evidenced by the Class X-CL
Certificates, each of which: (i) relates to its Corresponding REMIC II Regular
Interest; (ii) accrues interest at its Pass-Through Rate in effect from time to
time; and (iii) has a separate Component Notional Amount on which such Class
X-XX XXXXX
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III Component accrues interest from time to time. The Class X-XX XXXXX III
Components shall have the following alphabetic and alphanumeric designations:
X-CL-A-1; X-CL-A-2-1; X-CL-A-2-2; X-CL-A-2-3; X-CL-A-2-4; X-CL-A-AB; X-CL-A-3-1;
X-CL-A-3-2; X-CL-A-3-3; X-CL-A-3-4; X-CL-A-1A-1; X-CL-A-1A-2; X-CL-A-1A-3;
X-CL-A-1A-4; X-CL-A-1A-5; X-CL-A-1A-6; X-CL-A-1A-7; X-CL-A-1A-8; X-CL-A-M;
X-XX-X-X; X-CL-B; X-CL-C-1; X-CL-C-2; X-CL-D-1; X-CL-D-2; X-CL-E-1; X-CL-E-2;
X-CL-F; X-CL-G-1; X-CL-G-2; X-CL-H; X-CL-J; X-CL-K; X-CL-L; X-CL-M; X-CL-N;
X-CL-P; X-CL-Q; X-CL-S; and X-CL-T.
"Class X-CP Certificate" shall mean any one of the Certificates with a
"Class X-CP" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing a portion of multiple separate
"regular interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CP REMIC III Component" shall mean any of the multiple
separate "regular interests" in REMIC III evidenced by the Class X-CP
Certificates, each of which: (i) relates to its Corresponding REMIC II Regular
Interest; (ii) accrues interest at its Pass-Through Rate in effect from time to
time; and (iii) has a separate Component Notional Amount on which such Class
X-CP REMIC III Component accrues interest from time to time. The Class X-CP
REMIC III Components shall have the respective alphabetic and alphanumeric
designations set forth in the definition of "Class X-CP Termination Date".
"Class X-CP Termination Date" shall mean, with respect to any Class
X-CP REMIC III Component, the Distribution Date in the month and year specified
opposite the alphabetic or alphanumeric designation for such Class X-CP REMIC
III Component in the following table.
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Designation of Class X-CP Month and Year of Class X-CP
REMIC III Component Termination Date
------------------------- ----------------------------
X-CP-A-2-2 April 2008
X-CP-A-2-3 April 2009
X-CP-A-2-4 April 2010
X-CP-A-AB April 2011
X-CP-A-3-1 April 2011
X-CP-A-3-2 April 2012
X-CP-A-3-3 April 2013
X-CP-A-3-4 April 2014
X-CP-A-1A-2 April 2008
X-CP-A-1A-3 April 2009
X-CP-A-1A-4 April 2010
X-CP-A-1A-5 April 2011
X-CP-A-1A-6 April 2012
X-CP-A-1A-7 April 2013
X-CP-A-1A-8 April 2014
X-CP-A-M April 2014
X-XX-X-X April 2014
X-CP-B April 2014
X-CP-C-1 April 2013
X-CP-C-2 April 2014
X-CP-D-1 April 2012
X-CP-D-2 April 2013
X-CP-E-1 April 2011
X-CP-E-2 April 2012
X-CP-F April 2011
X-CP-G-1 April 2010
X-CP-G-2 April 2011
"Class X-W Certificate" shall mean any one of the Certificates with a
"Class X-W" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of multiple separate
"regular interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-W REMIC III Component" shall mean any of the multiple
separate "regular interests" in REMIC III evidenced by the Class X-W
Certificates, each of which: (i) relates to its Corresponding REMIC II Regular
Interest; (ii) accrues interest at its Pass-Through Rate in effect from time to
time; and (iii) has a separate Component Notional Amount on which such Class X-W
REMIC III Component accrues interest from time to time. The Class X-W REMIC III
Components shall have the following alphabetic and alphanumeric designations:
X-W-A-1-Prime; X-W-A-2-Prime; X-W-A-AB-Prime; X-W-A-3-Prime; X-W-A-1A-Prime;
X-W-A-M-Prime; X-W-A-J-Prime; X-W-B-Prime; X-W-C-Prime; X-W-D-Prime;
X-W-E-Prime; X-W-F-Prime; X-W-G-Prime; X-W-H-Prime; X-W-J-Prime; X-W-K-Prime;
X-W-L-Prime; X-W-M-Prime; X-W-N-Prime; X-W-P-Prime; X-W-Q-Prime; X-W-S-Prime;
and X-W-T-Prime.
"Clearstream" shall mean Clearstream Banking, Luxembourg or any
successor.
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"Closing Date" shall mean May 9, 2007.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Controlling Class Representative.
"CMSA Advance Recovery Report" shall mean a report (prepared by the
Master Servicer) substantially in the form of, and containing the information
called for in, the downloadable form of the "Advance Recovery Report" available
as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information as may from time to time be approved by the
CMSA for commercial mortgage securities transactions generally.
"CMSA Appraisal Reduction Template" shall mean a report (prepared by
the Special Servicer) substantially in the form of, and containing the
information called for in, the downloadable form of the "Appraisal Reduction
Template" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Bond Level File" shall mean the monthly report (prepared by the
Trustee) substantially in the form of, and containing the information called for
in, the downloadable form of the "Bond Level File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Collateral Summary File" shall mean the report (prepared by the
Trustee) substantially in the form of, and containing the information called for
in, the downloadable form of the "Collateral Summary File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Comparative Financial Status Report" shall mean a report
(prepared by the Master Servicer) substantially in the form of, and containing
the information called for in, the downloadable form of the "Comparative
Financial Status Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally. In connection with preparing the CMSA Comparative Financial Status
Report, the Master Servicer shall
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process (a) interim financial statements beginning with interim financial
statements for the fiscal quarter ending September of 2007, and (b) annual
financial statements beginning with annual financial statements for the 2007
fiscal year.
"CMSA Delinquent Loan Status Report" shall mean a report (prepared by
the Master Servicer) substantially in the form of, and containing the
information called for in, the downloadable form of the "Delinquent Loan Status
Report" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Financial File" shall mean a report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "Financial File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Historical Bond/Collateral Realized Loss Reconciliation
Template" shall mean a report (prepared by the Trustee) substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Bond/Collateral Realized Loss Reconciliation Template" available
as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Historical Liquidation Loss Template" shall mean a report
(prepared by the Trustee) substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Liquidation
Loss Template" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan Report"
shall mean a report (prepared by the Master Servicer) substantially in the form
of, and containing the information called for in, the downloadable form of the
"Historical Loan Modification and Corrected Mortgage Loan Report" available as
of the Closing Date on the CMSA Website, or such other form for the presentation
of such information and containing such additional information as may from time
to time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Interest Shortfall Reconciliation Template" shall mean a report
(prepared by the Trustee) substantially in the form of, and containing the
information called for in, the downloadable form of the "Interest Shortfall
Reconciliation Template" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
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"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following seven data files: (i) CMSA Loan Setup File, (ii)
CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Financial File, (v) CMSA Special Servicer Loan File, (vi) CMSA Bond Level
File, and (vii) CMSA Collateral Summary File;
(b) the following ten supplemental reports: (i) CMSA Servicer Watch
List, (ii) CMSA Delinquent Loan Status Report, (iii) CMSA REO Status
Report, (iv) CMSA Comparative Financial Status Report, (v) CMSA Historical
Loan Modification and Corrected Mortgage Loan Report, (vi) CMSA Loan Level
Reserve/LOC Report, (vii) CMSA Total Loan Report, (viii) CMSA Advance
Recovery Report, (ix) CMSA Operating Statement Analysis Report, and (x)
CMSA NOI Adjustment Worksheet;
(c) the following six templates: (i) CMSA Appraisal Reduction
Template, (ii) CMSA Servicer Realized Loss Template, (iii) CMSA
Reconciliation of Funds Template, (iv) CMSA Historical Bond/Collateral
Realized Loss Reconciliation Template, (v) CMSA Historical Liquidation Loss
Template, and (vi) CMSA Interest Shortfall Reconciliation Template; and
(d) such other files, reports or templates as the CMSA may approve
from time to time as being part of the CMSA Investor Reporting Package for
commercial mortgage securitization trusts generally and as are reasonably
acceptable to the Master Servicer, Special Servicer or Trustee (whichever
party is required to complete the subject file, report or template).
"CMSA Loan Level Reserve/LOC Report" shall mean the monthly report
(prepared by the Master Servicer) substantially in the form of, and containing
the information called for in, the downloadable form of the "Loan Level
Reserve/LOC Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Loan Periodic Update File" shall mean the monthly report
(prepared by the Master Servicer) substantially in the form of, and containing
the information called for in, the downloadable form of the "Loan Periodic
Update File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Loan Setup File" shall mean the report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "Loan Setup File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Serviced Mortgage Loans, and
by the Special Servicer with respect to Specially Serviced Mortgage Loans and,
if they relate to Administered REO Properties, REO Mortgage Loans, which report
shall be substantially in the form of, and contain the information called for
in, the downloadable form of the "NOI Adjustment Worksheet" available as of the
Closing Date on
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the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be approved
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Operating Statement Analysis Report" shall mean a report
(prepared by the Master Servicer, in the case of a Performing Serviced Mortgage
Loan, and by the Special Servicer, in the case of a Specially Serviced Mortgage
Loan) substantially in the form of, and containing the information called for
in, the downloadable form of the "Operating Statement Analysis Report" available
as of the Closing Date on the CMSA Website or in such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Property File" shall mean a report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "Property File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Reconciliation of Funds Template" shall mean a report (prepared
by the Trustee) substantially in the form of, and containing the information
called for in, the downloadable form of the "Reconciliation of Funds Template"
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA REO Status Report" shall mean a report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "REO Status Report" available as of the
Closing Date on the CMSA Website, or in such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Servicer Realized Loss Template" shall mean a report (prepared
by the Master Servicer, in the case of a Performing Serviced Mortgage Loan, and
by the Special Servicer, in the case of a Specially Serviced Mortgage Loan)
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Realized Loss Template" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Servicer Watch List" shall mean a report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "Servicer Watch List" available as of the
Closing Date on the CMSA Website, or in such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Special Servicer Loan File" shall mean the report (prepared by
the Special Servicer) substantially in the form of, and containing the
information called for in, the downloadable form of the "Special Servicer Loan
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as
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may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Total Loan Report" shall mean the monthly report (prepared by
the Master Servicer) substantially in the form of, and containing the
information called for in, the downloadable form of the "Total Loan Report"
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Website" shall mean the CMSA's Website located at "xxx.xxxx.xxx"
or such other primary website as the CMSA may establish for dissemination of its
report forms.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"Co-Lender Agreement" shall mean, with respect to any Loan
Combination, the co-lender, intercreditor or similar agreement governing the
relative rights of the respective holders of the Mortgage Loans comprising such
Loan Combination. The Co-Lender Agreements consist of the State Street Building
Co-Lender Agreement, the Extendicare Portfolio Co-Lender Agreement, the Sears
Tower Co-Lender Agreement and the A/B Co-Lender Agreements.
"Collection Account" shall mean the segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b), which shall
be entitled "[NAME OF TRUSTEE] as Trustee, in trust for the registered holders
of LB-UBS Commercial Mortgage Trust 2007-C2, Commercial Mortgage Pass-Through
Certificates, Series 2007-C2".
"Collection Period" shall mean, individually and collectively, as
applicable in the context used, (i) the related Loan Combination Collection
Period with respect to each Loan Combination and all related matters, and (ii)
the Trust Collection Period with respect to the Mortgage Pool (exclusive of
those Trust Mortgage Loans and any REO Trust Mortgage Loans that are part of a
Loan Combination) and all related matters.
"Combination Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that constitutes part of a Loan Combination. The Combination Trust Mortgage
Loans are the State Street Building Trust Mortgage Loan, the Extendicare
Portfolio Trust Mortgage Loan, the Sears Tower Trust Mortgage Loan and the
Serviced Note A Trust Mortgage Loans.
"Commission" shall mean the United States Securities and Exchange
Commission or any successor agency.
"Component Notional Amount" shall mean the notional amount on which
any REMIC III Component of a Class of Interest-Only Certificates accrues
interest, which, as of any date of determination, is equal to the then current
Uncertificated Principal Balance of its Corresponding REMIC II Regular Interest
outstanding from time to time.
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"Condemnation Proceeds" shall mean all cash amounts Received by the
Trust in connection with the taking of all or a part of a Mortgaged Property or
REO Property by exercise of the power of eminent domain or condemnation,
subject, however, to the rights of any tenants and ground lessors, as the case
may be, and the terms of the related Mortgage.
"Controlling Class" shall mean, as of any date of determination, the
then most subordinate (based on the payment priorities set forth in Sections
4.01(a) and 4.01(b)) outstanding Class of Principal Balance Certificates that
has a Class Principal Balance that is at least equal to 25% of the Original
Class Principal Balance of such Class; provided that if no Class of Principal
Balance Certificates has as of such date of determination a Class Principal
Balance that is at least equal to 25% of its Original Class Principal Balance,
then the Controlling Class shall be the then most subordinate (based on the
payment priorities set forth in Sections 4.01(a) and 4.01(b)) outstanding Class
of Principal Balance Certificates that has a Class Principal Balance greater
than zero; and provided, further, that, for purposes of determining, and
exercising the rights of, the Controlling Class, all of the Senior Class A
Certificates shall be deemed to constitute a single Class of Certificates. The
Trustee shall notify the other parties hereto of any change of which it has
knowledge in the Class of Certificates that constitutes the Controlling Class
pursuant to this definition.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 6.09(b).
"Controlling Class Representative Confirmation" shall have the meaning
assigned thereto in Section 6.09(b).
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services -- LB-UBS Commercial Mortgage Trust 2007-C2.
"Corrected Mortgage Loan" shall mean any Serviced Mortgage Loan that
had been a Specially Serviced Mortgage Loan but has ceased to be such in
accordance with the definition of "Specially Serviced Mortgage Loan" (other than
by reason of a Liquidation Event occurring in respect of such Serviced Mortgage
Loan or the related Mortgaged Property's becoming an REO Property). None of the
Outside Serviced Mortgage Loans shall constitute a Corrected Mortgage Loan under
this Agreement.
"Corrected Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that constitutes a Corrected Mortgage Loan.
"Corresponding Class of Principal Balance Certificates" shall mean,
with respect to any REMIC II Regular Interest, the Class designated as such in
the Preliminary Statement hereto.
"Corresponding Class X-CP REMIC III Component" shall mean, with
respect to any Class X-XX XXXXX III Component, any Class X-CP REMIC III
Component that has the same
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Corresponding REMIC II Regular Interest as such Class X-XX XXXXX III Component.
If the Corresponding REMIC II Regular Interest for any Class X-XX XXXXX III
Component is not also a Corresponding REMIC II Regular Interest for a Class X-CP
REMIC III Component, then such Class X-XX XXXXX III Component shall not have a
Corresponding Class X-CP REMIC III Component.
"Corresponding REMIC II Regular Interest" shall mean: (a) with respect
to any Class of Principal Balance Certificates, each REMIC II Regular Interest
that has an alphabetic or alphanumeric, as applicable, designation that is the
same as, or that begins with, the alphabetic or alphanumeric, as the case may
be, designation for such Class of Principal Balance Certificates (for example,
REMIC II Regular Interest A-1 and REMIC II Regular Interest A-1-Prime shall each
be a Corresponding REMIC II Regular Interest with respect to the Class A-1
Certificates); (b) with respect to any Class X-XX XXXXX III Component, the REMIC
II Regular Interest that has an alphabetic or alphanumeric, as applicable,
designation that, when preceded by "X-CL-", is the same as the alphabetic or
alphanumeric, as the case may be, designation for such Class X-XX XXXXX III
Component; (c) with respect to any Class X-CP REMIC III Component, the REMIC II
Regular Interest that has an alphabetic or alphanumeric, as applicable,
designation that, when preceded by "X-CP-", is the same as the alphabetic or
alphanumeric, as the case may be, designation for such Class X-CP REMIC III
Component; and (d) with respect to any Class X-W REMIC III Component, the REMIC
II Regular Interest that has an alphabetic or alphanumeric, as applicable,
designation that, when preceded by "X-W-", is the same as the alphabetic or
alphanumeric, as the case may be, designation for such Class X-W REMIC III
Component.
"Countrywide" means Countrywide Commercial Real Estate Finance Inc. or
its successor in interest.
"Countrywide/Depositor Mortgage Loan Purchase Agreement" shall mean
that certain Mortgage Loan Purchase Agreement dated as of April 24, 2007,
between the Countrywide Mortgage Loan Seller and the Depositor.
"Countrywide Mortgage Loan Seller" shall mean Countrywide.
"Countrywide Trust Mortgage Loan" shall mean any Trust Mortgage Loan
or portion thereof transferred by the Countrywide Mortgage Loan Seller to the
Depositor, pursuant to the Countrywide/Depositor Mortgage Loan Purchase
Agreement.
"Covered Costs" shall mean, with respect to any Trust Mortgage Loan
and any related costs and expenses that the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the
case of a Non-Xxxxxx Trust Mortgage Loan), as applicable, are otherwise required
to pay pursuant to Section 2.03(d) or the related Mortgage Loan Purchase
Agreement, as applicable, (i) if such Trust Mortgage Loan has an original
principal balance equal to or less than $10,000,000, the entire amount of such
costs and expenses, but only in the event such costs and expenses exceed a
threshold of $10,000, and (ii) if such Trust Mortgage Loan has an original
principal balance greater than $10,000,000, the entire amount of such costs and
expenses, but only in the event such costs and expenses exceed a threshold of
$25,000. In the case of each of clauses (i) and (ii) above in this definition,
in the event the subject costs and expenses do not exceed the required threshold
stated in the subject clause, the "Covered Costs" shall be $0.
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"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans; provided that no Loan Combination shall
constitute a Cross-Collateralized Group.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan that
is cross-defaulted and cross-collateralized with any other Mortgage Loan;
provided that none of the Mortgage Loans in a Loan Combination shall constitute
a Cross-Collateralized Mortgage Loan.
"Custodial Account" shall mean the Pool Custodial Account or any Loan
Combination Custodial Account.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for some or all of the
Mortgage Files, which Person shall not be the Depositor, a Mortgage Loan Seller
or an Affiliate of the Depositor or a Mortgage Loan Seller. If no such custodian
has been appointed, or if such custodian has been so appointed but the Trustee
shall have terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean, individually and collectively: (i) with
respect to those Trust Mortgage Loans originated on or before April 11, 2007,
April 11, 2007; and (ii) with respect to those Trust Mortgage Loans originated
after April 11, 2007, the related date of origination.
"Cut-off Date Balance" shall mean, with respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
net of all unpaid payments of principal due in respect thereof on or before such
date.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust (or,
if applicable, a Serviced Non-Trust Mortgage Loan Noteholder) in respect of any
Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"Default Interest" shall mean: (a) with respect to any Serviced
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), any
amounts collected thereon (other than late payment charges and Prepayment
Consideration) that represent penalty interest (arising out of a default) in
excess of (i) interest accrued on the principal balance of such Serviced
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), at the
related Mortgage Rate (net of any applicable Additional Interest Rate included
as part of such Mortgage Rate), and (ii) in the case of an ARD Mortgage Loan (or
any successor REO Trust Mortgage Loan with respect thereto) after the related
Anticipated Repayment Date, any Additional Interest; and (b) with respect to any
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), any comparable penalty interest Received by the Trust
with respect thereto.
"Defaulting Party" shall have the meaning assigned thereto in Section
7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.20(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Mortgage Loan, the Government Securities required or permitted to be pledged in
lieu of prepayment pursuant to the terms thereof in order to obtain a release of
the related Mortgaged Property.
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"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Mortgage Loan" shall mean any Mortgage Loan that permits
the related Mortgagor to pledge Defeasance Collateral to the holder of such
Mortgage Loan in connection with obtaining the release of all or any portion of
the related Mortgaged Property (or permits the holder of such Mortgage Loan to
require the related Mortgagor to pledge Defeasance Collateral to the holder of
such Mortgage Loan in lieu of prepayment).
"Defeasance Serviced Trust Mortgage Loan" shall mean any Defeasance
Trust Mortgage Loan that is also a Serviced Trust Mortgage Loan.
"Defeasance Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Defeasance Mortgage Loan.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any Non-Registered
Certificate that has been issued as a Definitive Certificate.
"Definitive Subordinate Certificate" shall mean any Subordinate
Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean SASCO II.
"Depository" shall mean The Depository Trust Company or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" shall mean, individually and collectively, as
applicable in the context used, (i) the related Loan Combination Determination
Date with respect to each Loan Combination and all related matters, and (ii) the
Trust Determination Date with respect to the Mortgage Pool (exclusive of those
Trust Mortgage Loans and any REO Trust Mortgage Loans that are part of a Loan
Combination) and all related matters.
"Directly Operate" shall mean, with respect to any Administered REO
Property, the furnishing or rendering of services to the tenants thereof, the
management or operation of such Administered REO Property, the holding of such
REO Property primarily for sale or lease, the performance of any construction
work thereon or any use of such Administered REO Property in a trade or business
conducted by REMIC I (or, if held thereby, any related Loan REMIC) other than
through an Independent Contractor; provided, however, that the Trustee (or the
Special Servicer or any Sub-
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Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an Administered REO Property solely because the Trustee (or the Special Servicer
or any Sub-Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs or capital expenditures with respect to such
Administered REO Property.
"Discount Rate" shall mean, with respect to any prepaid Trust Mortgage
Loan or REO Trust Mortgage Loan, for purposes of allocating any Prepayment
Consideration Received by the Trust with respect thereto among the respective
Classes of the YM Principal Balance Certificates, a rate which, when compounded
monthly, is equivalent to the Yield Maintenance Treasury Rate, when compounded
semi-annually.
"Dispute" shall have the meaning assigned thereto in Section 2.03(i).
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury regulations section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i) the
United States, any State or any political subdivision thereof, any foreign
government, international organization, or any agency or instrumentality of any
of the foregoing; (ii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business income); (iii) rural electric and
telephone cooperatives described in Section 1381 of the Code; or (iv) any other
Person so designated by the Trustee or the Tax Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Interest Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity classified
as a partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons or as to which the partnership agreement does not
prohibit transfers of partnership interests to Disqualified Non-United States
Tax Persons.
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"Distributable Certificate Interest" shall mean, with respect to any
Class of Regular Interest Certificates for any Distribution Date, subject to
Section 4.05(b), an amount of interest equal to (a) the amount of Accrued
Certificate Interest in respect of such Class of Certificates for the related
Interest Accrual Period, reduced (to not less than zero) by (b) that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Certificates as provided below. For purposes of
the foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated to each Class of Regular Interest
Certificates, in an amount equal to the lesser of (A) the amount of Accrued
Certificate Interest with respect to the subject Class of Regular Interest
Certificates for the related Interest Accrual Period and (B) the product of (1)
the entire amount of such Net Aggregate Prepayment Interest Shortfall,
multiplied by (2) a fraction, the numerator of which is equal to the amount of
Accrued Certificate Interest with respect to the subject Class of Regular
Interest Certificates for the related Interest Accrual Period, and the
denominator of which is equal to the aggregate amount of Accrued Certificate
Interest with respect to all the Classes of Regular Interest Certificates for
the related Interest Accrual Period.
"Distributable Component Interest" shall mean, with respect to any
REMIC III Component of a Class of Interest-Only Certificates for any
Distribution Date, subject to Section 4.05(b), an amount of interest equal to
(a) the amount of Accrued Component Interest in respect of such REMIC III
Component for the related Interest Accrual Period, reduced (to not less than
zero) by (b) the product of (i) the entire portion of any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date that was allocated to
such Class of Interest-Only Certificates in accordance with the definition of
"Distributable Certificate Interest," multiplied by (ii) a fraction, the
numerator of which is the amount of any Accrued Component Interest in respect of
such REMIC III Component for the related Interest Accrual Period, and the
denominator of which is the amount of the Accrued Certificate Interest in
respect of such Class of Interest-Only Certificates for the related Interest
Accrual Period.
"Distribution Date" shall mean the date each month, commencing in May
2007, on which, among other things, the Trustee is to make distributions on the
Certificates, which date shall be the fourth Business Day following the Trust
Determination Date in such calendar month.
"Distribution Date Statement" shall have the meaning assigned thereto
in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Mortgage Loan on or
prior to its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due; (ii) with respect to any Mortgage Loan after its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan had been scheduled to be first
due; and (iii) with respect to any REO Mortgage Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Mortgage Loan had been scheduled to be first due.
"Early Defeasance Trust Mortgage Loan" shall mean, subject to Section
2.06(b), any Trust Mortgage Loan that provides the related Mortgagor with the
option to defease such Trust Mortgage Loan in its entirety prior to the second
anniversary of the Closing Date. The Early Defeasance Trust Mortgage Loans, if
any, are identified on Schedule VII hereto. If Schedule VII hereto does not
identify any Trust Mortgage Loan as an Early Defeasance Trust Mortgage Loan,
then Section 2.06(b) shall apply.
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"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained with a
federal or state chartered depository institution or trust company, (A) the
long-term deposit or unsecured debt obligations of which are rated at least
"AA-" (or, if such depository institution or trust company has short-term
unsecured debt obligations rated at least "A-1" by S&P, at least "A-") by S&P,
at least "AA-" by Fitch and, if applicable, at least "Aa3" by Moody's (or, in
the case of either Rating Agency or, if applicable, Moody's, such lower rating
as will not result in an Adverse Rating Event with respect to any Class of
Certificates or, if applicable, any class of Specially Designated Non-Trust
Mortgage Loan Securities that is rated by such Rating Agency or, if applicable,
Moody's, as evidenced in writing by such Rating Agency or, if applicable,
Moody's, but in no event shall any such rating be lower than "A-" by each of S&P
and Fitch) at any time funds are on deposit therein (if such funds are to be
held for more than 30 days), or (B) the short-term deposits of which are rated
at least "A-1" by S&P, at least "F-1" by Fitch and, if applicable, at least
"P-1" by Moody's (or, in the case of either Rating Agency or, if applicable,
Moody's, such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or, if applicable, any class of Specially
Designated Non-Trust Mortgage Loan Securities, that is rated by such Rating
Agency or, if applicable, Moody's, as evidenced in writing by such Rating Agency
or, if applicable, Moody's, but in no event shall any such rating be lower than
"A-" by each of S&P and Fitch) at any time funds are on deposit therein (if such
funds are to be held for 30 days or less); or (ii) a segregated trust account
maintained with the trust department of a federal or state chartered depository
institution or trust company acting in its fiduciary capacity (which may be the
Trustee), which has a combined capital and surplus of at least $50,000,000, has
long-term deposit or unsecured debt obligations that are rated at least
investment grade by each Rating Agency and, if applicable, by Xxxxx'x, is
subject to supervision or examination by federal or state authority and, in the
case of a state chartered depository institution or trust company, is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR Section 9.10(b); or (iii) any other account, the use of which would
not, in and of itself, either (A) cause an Adverse Rating Event with respect to
any Class of Certificates or, if applicable, any class of Specially Designated
Non-Trust Mortgage Loan Securities that, in any event, is rated by either Rating
Agency or, if applicable, Moody's, as evidenced in writing by such Rating Agency
or, if applicable, Moody's or (B) be inconsistent with the requirements of FASB
140 or any interpretations with respect thereto applicable to such accounts;
provided that the references to Moody's and to the ratings thereof in clauses
(i), (ii) and (iii) of this definition shall not apply unless the account in
question relates solely to a Serviced Loan Combination that includes one or more
Specially Designated Securitized Non-Trust Mortgage Loans or any successor REO
Mortgage Loans with respect thereto that back Specially Designated Non-Trust
Mortgage Loan Securities rated by Moody's.
"Enhancement/Support Provider" shall mean any enhancement or support
provider contemplated by Item 1114(b) or Item 1115 of Regulation AB with respect
to the Trust Fund or any one or more Classes of Certificates.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in, and meeting the criteria of, the American Society of Testing
Materials Standard Sections 1527-05 or a review conducted in accordance with the
All Appropriate Inquiries final rule issued by the United States Environmental
Protection Agency on November 1, 2005 (40 C.F.R. Part 312), or any successor to
either.
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"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Serviced
Mortgage Loans identified on Schedule IV hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which an escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System or any successor.
"Event of Default" shall have the meaning assigned thereto in Section
7.01(a).
"Excess Defeasance Deposit Proceeds" shall mean, with respect to an
Early Defeasance Trust Mortgage Loan for which the related Mortgagor has
exercised its option to defease such Trust Mortgage Loan prior to the second
anniversary of the Closing Date, subject to Section 2.06(b), the excess, if any,
of any cash amount tendered by such Mortgagor in order to purchase Defeasance
Collateral or other permitted collateral for purposes of defeasing such Trust
Mortgage Loan in accordance with the related loan documents, over an amount
equal to, with respect to such Trust Mortgage Loan, the aggregate of the amounts
specified in clauses (a) through (e) of the definition of "Purchase Price" in
this Agreement.
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Trust Mortgage Loan or an Administered REO Property, net of (i)
interest on any related Advances, (ii) any related Servicing Advances, (iii) any
Liquidation Fee payable from such Net Liquidation Proceeds, and (iv) in the case
of a Trust Mortgage Loan that is part of, or an REO Property that relates to, a
Serviced Loan Combination, the portion of such Net Liquidation Proceeds payable
to the related Non-Trust Mortgage Loan Noteholder(s), over (b) the amount needed
to pay off the subject Trust Mortgage Loan or the related REO Trust Mortgage
Loan, as applicable, in full.
"Excess Liquidation Proceeds Account" shall mean the segregated
account or accounts (or the segregated sub-account of the Collection Account)
created and maintained by the Trustee pursuant to Section 3.04(d) in trust for
the Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as Trustee,
in trust for the registered holders of LB-UBS Commercial Mortgage Trust 2007-C2,
Commercial Mortgage Pass-Through Certificates, Series 0000-X0".
"Xxxxxxxx Xxx" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reportable Event" shall mean: (a) with respect to the
Trustee or, if and to the extent specifically applicable thereto or to its
duties on behalf of the Trustee, any Servicing
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Representative or other agent of the Trustee or any Trustee Appointee, a Trustee
Reportable Event; (b) with respect to the Master Servicer or, if and to the
extent specifically applicable thereto or to its duties on behalf of the Master
Servicer, any Servicing Representative or other agent of the Master Servicer, a
Master Servicer Reportable Event; and (c) with respect to the Special Servicer
or, if and to the extent specifically applicable thereto or to its duties on
behalf of the Special Servicer, any Servicing Representative or other agent of
the Special Servicer, a Special Servicer Reportable Event.
"Exchange Act Reporting Year" shall mean each of: (a) the Trust's
fiscal year 2007; and (b) any subsequent fiscal year of the Trust, but only if
as of the beginning of such subsequent fiscal year of the Trust the Registered
Certificates are held in the aggregate by at least 300 holders (which may
consist of (i) in the case of Registered Certificates held in definitive form,
direct Holders of such Definitive Certificates, and/or (ii) in the case of
Registered Certificates held in book-entry form through the Depository,
Depository Participants having accounts with the Depository).
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
"Exemption-Favored Party" shall mean any of (i) Xxxxxx Brothers, (ii)
any Person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with Xxxxxx Brothers, and
(iii) any member of any underwriting syndicate or selling group of which any
Person described in clauses (i) and (ii) is a manager or co-manager with respect
to a Class of Investment Grade Certificates.
"Extendicare Portfolio Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Extendicare Portfolio Collection Period" shall mean, with respect to
any Distribution Date or Trust Master Servicer Remittance Date, the period
commencing on the day immediately following the Extendicare Portfolio
Determination Date in the calendar month preceding the month in which such
Distribution Date or Trust Master Servicer Remittance Date, as the case may be,
occurs (or, in the case of each of the initial Distribution Date and the initial
Trust Master Servicer Remittance Date, commencing immediately following the
Cut-off Date) and ending on and including the Extendicare Portfolio
Determination Date in the calendar month in which such Distribution Date or
Trust Master Servicer Remittance Date, as the case may be, occurs.
"Extendicare Portfolio Determination Date" shall mean, during any
calendar month, commencing with May 2007, the "Remittance Date" (within the
meaning of the Extendicare Portfolio Co-Lender Agreement) that occurs during
that calendar month.
"Extendicare Portfolio Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"Extendicare Portfolio Master Servicer" shall mean the master servicer
under the Extendicare Portfolio Servicing Agreement.
"Extendicare Portfolio Mortgage Loan" shall mean the Extendicare
Portfolio Trust Mortgage Loan or an Extendicare Portfolio Non-Trust Mortgage
Loan, as applicable.
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"Extendicare Portfolio Mortgaged Property" shall have the meaning
assigned thereto in the Preliminary Statement.
"Extendicare Portfolio Non-Trust Mortgage Loan Noteholder" shall mean
the holder of the Mortgage Note for an Extendicare Portfolio Non-Trust Mortgage
Loan.
"Extendicare Portfolio Non-Trust Mortgage Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"Extendicare Portfolio Note A-1 Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Extendicare Portfolio Note A-1 Non-Trust Mortgage Loan Noteholder"
shall mean the holder of the Mortgage Note for the Extendicare Portfolio Note
A-1 Non-Trust Mortgage Loan.
"Extendicare Portfolio Note A-2 Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Extendicare Portfolio Note A-2 Non-Trust Mortgage Loan Noteholder"
shall mean the holder of the Mortgage Note for the Extendicare Portfolio Note
A-2 Non-Trust Mortgage Loan.
"Extendicare Portfolio Noteholders" shall mean, collectively, the
holder of the Mortgage Note for the Extendicare Portfolio Trust Mortgage Loan,
together with the Extendicare Portfolio Non-Trust Mortgage Loan Noteholders.
"Extendicare Portfolio Servicer" shall mean the Extendicare Portfolio
Master Servicer or the Extendicare Portfolio Special Servicer, as applicable.
"Extendicare Portfolio Servicing Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Extendicare Portfolio Special Servicer" shall mean the special
servicer under the Extendicare Portfolio Servicing Agreement.
"Extendicare Portfolio Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Extendicare Portfolio Trustee" shall mean the trustee, if any, under
the Extendicare Portfolio Servicing Agreement.
"Extendicare Portfolio Underlying Collection Period" shall mean, with
respect to any Distribution Date or Trust Master Servicer Remittance Date, the
"Loan Combination Collection Period" (within the meaning of the initial
Extendicare Portfolio Servicing Agreement) with respect to the Extendicare
Portfolio Loan Combination that ends in the calendar month in which such
Distribution Date or Trust Master Servicer Remittance Date, as the case may be,
occurs.
"Xxxxxx Mae" shall mean the Federal National Mortgage Association or
any successor.
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"FASB 140" shall mean the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing of Financial
Assets and Extinguishment of Liabilities", issued in September 2002.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"Fed Ex Portfolio Loan Combination" shall mean the Loan Combination
secured by Mortgage(s) on the real properties identified on the Trust Mortgage
Loan Schedule as Fed Ex Portfolio.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Filing Agent" shall have the meaning assigned thereto in Section
2.01(c).
"Filing Letter Agreement" shall have the meaning assigned thereto in
Section 2.01(c).
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Mortgage Loan or
Administered REO Property that there has been a recovery of all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and other payments or
recoveries that the Special Servicer has determined, in accordance with the
Servicing Standard, will be ultimately recoverable; provided that the term
"Final Recovery Determination" shall not apply to (i) a Specially Serviced
Mortgage Loan that was paid in full, or (ii) a Specially Serviced Trust Mortgage
Loan or Administered REO Property, as the case may be, that was the subject of a
Permitted Purchase; and provided, further, that the term "Final Recovery
Determination" shall include any comparable determination made with respect to
an Outside Serviced Trust Mortgage Loan or any related REO Property by a related
Outside Servicer pursuant to the related Outside Servicing Agreement.
"Fiscal Agent" shall mean any fiscal agent appointed by the Trustee as
provided in Section 8.17.
"Fitch" shall mean Fitch Ratings, Inc. or its successor in interest.
If neither such rating agency nor any successor remains in existence, "Fitch"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, any Fiscal Agent, the Master Servicer
and the Special Servicer, and specific ratings of Fitch Ratings, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Form 8-K" shall mean Exchange Act Form 8-K, as and to the extent that
such form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing current reports under Section 13 or
15(d) of the Exchange Act, filed pursuant to Rule 13a-11 or Rule 15d-11, and for
reports of nonpublic information required to be disclosed by Regulation FD (17
C.F.R. 243.100 and 243.101). For purposes of this Agreement, "Form 8-K" shall be
deemed to include any successor or equivalent Exchange Act form adopted by the
Commission.
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"Form 8-K Required Information" shall mean any and all information,
including with respect to any applicable Exchange Act Reportable Events,
required pursuant to the Exchange Act and/or the rules and regulations
promulgated thereunder to be reported by an asset-backed issuer under Form 8-K.
"Form 10-D" shall mean Exchange Act Form 10-D, as and to the extent
that such form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing distribution reports under Section
13 or 15(d) of the Exchange Act, filed pursuant to Rule 13a-17 or Rule 15d-17.
For purposes of this Agreement, "Form 10-D" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-D Required Information" shall mean any and all information,
including with respect to any applicable Exchange Act Reportable Events,
required pursuant to the Exchange Act and/or the rules and regulations
promulgated thereunder to be reported by an asset-backed issuer under Form 10-D.
"Form 10-K" shall mean Exchange Act Form 10-K, as and to the extent
that such form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing annual reports pursuant to Section
13 or 15(d) of the Exchange Act for which no other form is prescribed, as well
as for filing transition reports pursuant to Section 13 or 15(d) of the Exchange
Act. For purposes of this Agreement, "Form 10-K" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-K Required Information" shall mean any and all information,
including with respect to any applicable Exchange Act Reportable Events,
required pursuant to the Exchange Act and/or the rules and regulations
promulgated thereunder to be reported by an asset-backed issuer under Form 10-K.
"FV Bid" shall have the meaning assigned thereto in Section 3.18(d).
"FV Price" shall have the meaning assigned thereto in Section 3.18(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"General Special Servicer" shall have the meaning assigned thereto in
Section 7.01(e).
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the related Regulation S Global Certificate.
"Government Securities" shall mean "Government Securities" as defined
in Section 2(a)(16) of the Investment Company Act of 1940, excluding any such
securities that are not acceptable to either Rating Agency as Defeasance
Collateral.
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"Grantor Trust" shall mean, subject to Section 2.05(b), that certain
"grantor trust" (within the meaning of the Grantor Trust Provisions) consisting
of the Grantor Trust Assets.
"Grantor Trust Assets" shall mean, subject to Section 2.05(b), any
collections of Additional Interest Received by the Trust with respect to any ARD
Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect
thereto.
"Grantor Trust Provisions" shall mean Subpart E of Part 1 of
Subchapter J of the Code, including Treasury regulations section
301.7701-4(c)(2).
"Greenwich" means Greenwich Capital Financial Products, Inc. or its
successor in interest.
"Greenwich/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of April 24, 2007, between the
Greenwich Mortgage Loan Seller and the Depositor.
"Greenwich Mortgage Loan Seller" shall mean Greenwich.
"Greenwich Trust Mortgage Loan" shall mean any Trust Mortgage Loan or
portion thereof transferred by the Greenwich Mortgage Loan Seller to the
Depositor, pursuant to the Greenwich/Depositor Mortgage Loan Purchase Agreement.
"Ground Lease" shall mean, with respect to any Mortgage Loan for which
the related Mortgagor has a leasehold interest in the related Mortgaged
Property, the lease agreement(s) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"Group 1 Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is identified on the Trust Mortgage Loan Schedule as belonging to Loan Group No.
1.
"Group 2 Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is identified on the Trust Mortgage Loan Schedule as belonging to Loan Group No.
2.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls,
radon gas, petroleum and petroleum products and urea formaldehyde.
"Holder" shall mean a Certificateholder.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, each
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Controlling
Class Representative, any Non-Trust Mortgage Loan Noteholder
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and any and all Affiliates thereof, (ii) does not have any direct financial
interest in or any material indirect financial interest in any of the Depositor,
any Mortgage Loan Seller, the Master Servicer, the Special Servicer, the
Controlling Class Representative, any Non-Trust Mortgage Loan Noteholder, or any
Affiliate thereof, and (iii) is not connected with the Depositor, any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Controlling Class
Representative, any Non-Trust Mortgage Loan Noteholder or any Affiliate thereof
as an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, a Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Controlling Class Representative, a
Non-Trust Mortgage Loan Noteholder or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor, such Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Controlling Class Representative, such Non-Trust Mortgage Loan
Noteholder or any Affiliate thereof, as the case may be; provided that such
ownership constitutes less than 1% of the total assets owned by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five years experience in the subject property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to REMIC I (or, solely for purposes of an
Early Defeasance Trust Mortgage Loan or any corresponding REO Property, any
related Loan REMIC) within the meaning of Section 856(d)(3) of the Code if such
REMIC Pool were a real estate investment trust (except that the ownership test
set forth in that section shall be considered to be met by any Person that owns,
directly or indirectly, 35 percent or more of any Class of Certificates, or such
other interest in any Class of Certificates as is set forth in an Opinion of
Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund, delivered to the Trustee (and, if a
Serviced Loan Combination is involved, to the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), provided that (i) such REMIC Pool does not receive
or derive any income from such Person and (ii) the relationship between such
Person and such REMIC Pool is at arm's length, all within the meaning of
Treasury regulations section 1.856-4(b)(5); or (b) any other Person upon receipt
by the Trustee (and, if a Serviced Loan Combination is involved, by the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) of an Opinion of Counsel, which
shall be at no expense to the Master Servicer, the Special Servicer, the Trustee
or the Trust Fund, to the effect that the taking of any action in respect of any
Administered REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor, will not cause such Administered REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code for
purposes of Section 860D(a) of the Code, or cause any income realized in respect
of such Administered REO Property to fail to qualify as Rents from Real
Property, due to such Person's failure to be treated as an Independent
Contractor.
"Initial Bidder" shall have the meaning assigned thereto in Section
3.18(d).
"Initial Deposit" shall mean, with respect to each Initial Deposit
Mortgage Loan, if any, the supplemental payment from the related Mortgage Loan
Seller identified on Schedule V hereto, in the amount specified for such Initial
Deposit Mortgage Loan on Schedule V hereto.
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"Initial Deposit Mortgage Loans" shall mean each of the Trust Mortgage
Loans, if any, identified on Schedule V hereto.
"Initial Pool Balance" shall mean the aggregate of the Cut-off Date
Balances of all the Trust Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto in
Section 2.03(a).
"Institutional Accredited Investor" or "IAI" shall mean an "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the Securities Act or any entity in which all of the equity owners come
within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage Loan, any
hazard insurance policy, flood insurance policy, title policy, Environmental
Insurance Policy or other insurance policy that is maintained from time to time
in respect of such Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any Insurance
Policy, to the extent such proceeds are not applied to the restoration of the
related Mortgaged Property, released to the Mortgagor, or any tenants or ground
lessors, as the case may be, pursuant to the terms of the related Mortgage or
lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned thereto
in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any REO Mortgage Loan, any Loan REMIC
Regular Interest, any REMIC I Regular Interest, any REMIC II Regular Interest,
any Class of Regular Interest Certificates or any REMIC III Component of a Class
of Interest-Only Certificates, in each case consisting of one of the following:
(i) a 360-day year consisting of twelve 30-day months; (ii) actual number of
days elapsed in a 360-day year; (iii) actual number of days elapsed in a 365-day
year; or (iv) actual number of days elapsed in an actual calendar year (taking
account of leap year).
"Interest Accrual Period" shall mean, with respect to any Distribution
Date, the period commencing on the 11th calendar day of the month immediately
preceding the month in which such Distribution Date occurs and ending on the
10th calendar day of the month in which such Distribution Date occurs.
"Interest-Only Certificates" shall mean, collectively, the Class X-CL,
Class X-CP and Class X-W Certificates.
"Interested Person" shall mean the Depositor, the Master Servicer, the
Special Servicer, the Trustee, any Fiscal Agent, any Certificateholder, or any
Affiliate of any such Person.
"Interest Reserve Account" shall mean the segregated account or
accounts (or the segregated sub-account of the Collection Account) created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as
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Trustee, in trust for the registered holders of LB-UBS Commercial Mortgage Trust
2007-C2, Commercial Mortgage Pass-Through Certificates, Series 2007-C2".
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs during the calendar month of January (except in a
leap year) or during the calendar month of February, an amount equal to one (1)
day's interest accrued at the related Mortgage Rate (net of the related
Additional Interest Rate, in the case of an ARD Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto after the related
Anticipated Repayment Date, and net of the related Outside Servicing Fee Rate
(or, alternatively, if the related Outside Servicing Fee accrues on a 30/360
Basis, the Actual/360 Equivalent of the Related Outside Servicing Fee Rate), in
the case of an Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto) on the related Stated Principal Balance as
of the Due Date in the month in which such Distribution Date occurs (but prior
to the application of any amounts due on such Due Date), to the extent that a
Monthly Payment or an Assumed Monthly Payment, as applicable, is Received by the
Trust in respect thereof for such Due Date as of the related Determination Date
or a P&I Advance is made under this Agreement in respect thereof for such Due
Date by such Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Trust Mortgage Loan
that accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Trust Mortgage
Loan as to which the predecessor Trust Mortgage Loan was an Interest Reserve
Mortgage Loan.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate that is rated in one of the four highest generic
rating categories by at least one Rating Agency.
"Investment Period" shall mean: (a) with respect to any investment of
funds in any Master Servicer Account (other than a Custodial Account) or any REO
Account, the period that ends at the close of business (New York City time) on
each Trust Determination Date (or, if the subject Investment Account relates
solely to a Serviced Loan Combination, on each related Loan Combination
Determination Date) and commences immediately following the end of the prior
such period (or, in the case of the first such period, commences on the Closing
Date); (b) with respect to any investment of funds in the Pool Custodial
Account, the Interest Reserve Account or the Excess Liquidation Proceeds
Account, the period that ends at the close of business (New York City time) on
the Business Day prior to each Trust Master Servicer Remittance Date and
commences immediately following the end of the prior such period (or, in the
case of the first such period, commences on the Closing Date); (c) with respect
to any investment of funds in any Loan Combination Custodial Account, the period
that ends at the close of business (New York City time) on the Business Day
prior to each related Loan Combination Master Servicer Remittance Date and
commences immediately following the end of the prior such period (or, in the
case of the first such period, commences on the Closing Date); and (d) with
respect to any investment of funds in the Collection Account, the period that
ends at the close of business (New York City time) on each Trust Master Servicer
Remittance Date and commences immediately following the end of the prior such
period (or, in the case of the first such period, commences on the Closing
Date); provided that, if and to the extent that the depository institution
maintaining any REO Account, Custodial Account or Trustee Account is the obligor
on any investment of funds in such Investment
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Account, and if such funds are to be transferred to another Investment Account
or distributed to Certificateholders or any Serviced Non-Trust Mortgage Loan
Noteholder on the Business Day following the end of any particular Investment
Period (determined without regard to this proviso) for such investment, then
such Investment Period shall be deemed extended through such time on such next
succeeding Business Day when such transfer or distribution is to occur.
"IRS" shall mean the Internal Revenue Service or any successor agency.
"LaSalle" shall mean LaSalle Bank National Association or its
successor in interest.
"Late Collections" shall mean: (a) with respect to any Trust Mortgage
Loan, all amounts Received by the Trust in connection therewith during any
related Collection Period, whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Trust Mortgage
Loan due or deemed due on a Due Date in a previous related Collection Period, or
on a Due Date coinciding with or preceding the Cut-off Date, and not previously
recovered; and (b) with respect to any REO Trust Mortgage Loan, all amounts
Received by the Trust in connection with the related REO Property during any
related Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of the
predecessor Trust Mortgage Loan, or the principal and/or interest portions of an
Assumed Monthly Payment in respect of such REO Trust Mortgage Loan, due or
deemed due on a Due Date in a previous related Collection Period and not
previously recovered.
"LBHI" shall mean Xxxxxx Brothers Holdings Inc. or its successor in
interest.
"LBHI/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of April 24, 2007, between
LBHI and the Depositor.
"LBHI Trust Mortgage Loan" shall mean any Trust Mortgage Loan (or
applicable portion thereof) transferred by LBHI to the Depositor, pursuant to
the LBHI/Depositor Mortgage Loan Purchase Agreement.
"Legal Final Distribution Date" shall mean, with respect to any Loan
REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates (exclusive of the
Interest-Only Certificates) or any particular REMIC III Component of a Class of
Interest-Only Certificates, the "latest possible maturity date" thereof,
calculated solely for purposes of satisfying Treasury regulations section
1.860G-1(a)(4)(iii).
"Xxxxxx Brothers" shall mean Xxxxxx Brothers Inc. or its successor in
interest.
"Xxxxxx Mortgage Loan Seller" shall mean: (a) LBHI in matters relating
to an LBHI Trust Mortgage Loan; and (b) LUBS in matters relating to a LUBS Trust
Mortgage Loan, if any.
"Xxxxxx Trust Mortgage Loan" shall mean any LBHI Trust Mortgage Loan
or LUBS Trust Mortgage Loan, as applicable.
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"Liquidation Event" shall mean: (a) with respect to any Trust Mortgage
Loan or Serviced Non-Trust Mortgage Loan, any of the following events--(i) such
Mortgage Loan is paid in full, (ii) a Final Recovery Determination is made with
respect to such Mortgage Loan, or (iii) in the case of a Trust Mortgage Loan,
such Mortgage Loan is the subject of a Permitted Purchase; and (b) with respect
to any REO Property (and the related REO Mortgage Loan(s)), any of the following
events--(i) a Final Recovery Determination is made with respect to such REO
Property, or (ii) such REO Property is the subject of a Permitted Purchase.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan pursuant to Section 3.09 or in connection with
the sale of a Specially Serviced Mortgage Loan or an Administered REO Property
in accordance with Section 3.18, or in connection with the final payoff of a
Corrected Mortgage Loan (including legal fees and expenses, committee or referee
fees and, if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events in
respect of a Specially Serviced Mortgage Loan or an Administered REO Property
pursuant to, Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or Administered REO Property as to which a Liquidation
Fee is payable, 1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) Received by the
Trust (or, in the case of a Serviced Loan Combination or any related
Administered REO Property, collected on behalf of the Trust and/or the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) in connection with: (i) the full
or partial liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) a
Permitted Purchase; or (iv) except for purposes of Section 3.11(c), the transfer
of any Loss of Value Payments from the Loss of Value Reserve Fund, or the
deposit of any other payments contemplated by Section 2.03(d), in any event to
the Pool Custodial Account.
"LNR" shall mean LNR Partners, Inc. or its successor in interest.
"Loan Combination" shall mean any group of two or more mortgage loans,
at least one of which mortgage loans is included in the Trust Fund and at least
one of which mortgage loans is not included in the Trust Fund, and all of which
mortgage loans are secured by the same Mortgage(s) on the same Mortgaged
Property or Properties, as applicable. The Loan Combinations are the State
Street Building Loan Combination, the Extendicare Portfolio Loan Combination,
the Sears Tower Loan Combination and the Serviced A/B Loan Combinations.
"Loan Combination Change of Control Event" shall mean, with respect to
any Serviced Senior/Subordinate Loan Combination, any event that would result in
the "Note A Lender", the "Note A Lenders", the "Senior Lender" or the "Senior
Lenders", as applicable, under the related Co-Lender
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Agreement becoming the applicable Loan Combination Directing Lender in
accordance with the related Co-Lender Agreement.
"Loan Combination Collection Period" shall mean, individually and
collectively, as applicable in the context used, (i) the State Street Building
Collection Period with respect to the State Street Building Loan Combination and
all related matters, (ii) the Extendicare Portfolio Collection Period with
respect to the Extendicare Portfolio Loan Combination and all related matters,
(iii) the Sears Tower Collection Period with respect to the Sears Tower Loan
Combination and all related matters and (iv) the Trust Collection Period with
respect to each other Loan Combination and all related matters.
"Loan Combination Controlling Party" shall mean, with respect to any
Loan Combination, the related Loan Combination Directing Lender (or, if
applicable, any representative appointed thereby consistent with the related
Co-Lender Agreement, to exercise the rights and powers of the related Loan
Combination Directing Lender under the related Co-Lender Agreement or this
Agreement).
"Loan Combination Custodial Account" shall mean, with respect to each
Serviced Loan Combination, the segregated account or accounts (which may,
subject to the last paragraph of Section 3.04A(a), be a subaccount of the Pool
Custodial Account) created and maintained by the Master Servicer pursuant to
Section 3.04A on behalf of the holders of the Mortgage Loans included in such
Serviced Loan Combination, which shall be entitled substantially as follows:
"[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF RELATED
MORTGAGE NOTEHOLDERS], as their interests may appear".
"Loan Combination Determination Date" shall mean, individually and
collectively, as applicable in the context used, (i) the State Street Building
Determination Date with respect to the State Street Building Loan Combination
and all related matters, (ii) the Extendicare Portfolio Determination Date with
respect to the Extendicare Portfolio Loan Combination and all related matters,
(iii) the Sears Tower Determination Date with respect to the Sears Tower Loan
Combination and all related matters, and (iv) the Trust Determination Date with
respect to each other Loan Combination and all related matters.
"Loan Combination Directing Lender" shall mean, with respect to any
Loan Combination and (if applicable) any particular matter, as of any date of
determination, the "Directing Lender", "Controlling Lender", "Controlling
Holder" or an analogous term, as applicable, under the related Co-Lender
Agreement.
"Loan Combination Master Servicer Remittance Date" shall mean, with
respect to any Serviced Loan Combination, the date of each month, commencing in
May 2007, on which, among other things, the Master Servicer is required to make
normal monthly remittances to the related Serviced Non-Trust Mortgage Loan
Noteholder(s), which date shall be: (i) with respect to the Sears Tower Loan
Combination, the Sears Tower Master Servicer Remittance Date in such calendar
month; and (ii) with respect to any other Serviced Loan Combination, the
Business Day immediately preceding the Distribution Date in such calendar month.
"Loan Combination REO Account" shall mean, with respect to each
Serviced Loan Combination, the segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
holders of the Mortgage Loans included in such Serviced Loan
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Combination, which shall be entitled "[NAME OF SPECIAL SERVICER], as Special
Servicer, in trust for [NAMES OF RELATED MORTGAGE NOTEHOLDERS], as their
interests may appear".
"Loan Combination Servicing Reports" shall mean, with respect to each
Serviced Loan Combination, (a) each of the files identified under clauses (a)(i)
through (iv) of the definition of "CMSA Investor Reporting Package", (b) each of
the supplemental reports identified under clause (b) of the definition of "CMSA
Investor Reporting Package", and (c) each of the templates identified under
clause (c)(i) and clause (c)(ii) of the definition of "CMSA Investor Reporting
Package", each as may be modified to reflect the fact that only the related
Mortgaged Property or Properties or any related REO Property or Properties, as
the case may be, shall be the subject of such report.
"Loan Combination Special Servicer" shall mean, with respect to any
Serviced Loan Combination, any special servicer hereunder responsible for
special servicing such Loan Combination or any related REO Property; provided
that, if such special servicer has special servicing responsibilities with
respect to other Serviced Mortgage Loans and/or Administered REO Properties,
then the term "Loan Combination Special Servicer" shall refer to such party only
to the extent of its rights, duties and obligations in respect of a Serviced
Loan Combination or any related REO Property.
"Loan Group" shall mean either of Loan Group No. 1 or Loan Group No.
2.
"Loan Group No. 1" shall mean, collectively, all of the Trust Mortgage
Loans that are Group 1 Trust Mortgage Loans and any successor REO Trust Mortgage
Loans with respect thereto.
"Loan Group No. 2" shall mean, collectively, all of the Trust Mortgage
Loans that are Group 2 Trust Mortgage Loans and any successor REO Trust Mortgage
Loans with respect thereto.
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached hereto, and
setting forth for each Serviced Mortgage Loan as to which written notice of
anticipated payoff has been received by the Master Servicer as of the related
Determination Date preceding the delivery of such report, among other things,
the loan number, the property name, the ending scheduled loan balance for the
related Collection Period ending on such Determination Date, the expected date
of payment, the expected related Distribution Date and the estimated amount of
the Prepayment Consideration due (if any).
"Loan REMIC" shall mean, with respect to any Early Defeasance Trust
Mortgage Loan, subject to Section 2.06(b), the segregated pool of assets, as to
which a separate REMIC election is to be made, consisting of: (i) such Trust
Mortgage Loan (for so long as it is subject to this Agreement) and all payments
under and proceeds of such Trust Mortgage Loan Received by the Trust after the
Closing Date (other than scheduled payments of interest and principal due on or
before the Cut-off Date), together with all documents included in the related
Mortgage File; (ii) any REO Property acquired in respect of such Trust Mortgage
Loan (for so long as it is subject to this Agreement) and all income and
proceeds therefrom; (iii) such funds or assets as from time to time are
deposited in the Pool Custodial Account, the Collection Account, the Interest
Reserve Account and, if established, the Pool REO Account with respect to such
Trust Mortgage Loan or any related REO Property; and (iv) insofar as they relate
to such Trust Mortgage Loan or any related REO Property, the rights of the
Depositor under the UBS/Depositor Mortgage Loan Purchase Agreement (but only if
such Trust Mortgage Loan is a UBS Trust Mortgage Loan); provided that none of
the Loan REMICs shall include (x) any collections of Additional Interest or (y)
the Loss of Value Reserve Fund or any amounts on deposit therein.
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"Loan REMIC Interest" shall mean, subject to Section 2.06(b), either a
Loan REMIC Regular Interest or a Loan REMIC Residual Interest.
"Loan REMIC Regular Interest" shall mean, subject to Section 2.06(b),
the uncertificated "regular interest" within the meaning of Section 860G(a)(1)
of the Code, in a Loan REMIC.
"Loan REMIC Remittance Rate" shall mean: (a) with respect to any Loan
REMIC Regular Interest that, as of the Closing Date, corresponds to a Trust
Mortgage Loan that accrues interest on a 30/360 Basis, a rate per annum that is,
for any Interest Accrual Period, equal to (i) the Mortgage Rate in effect for
such corresponding Trust Mortgage Loan as of the Closing Date (without regard to
any modifications, extensions, waivers or amendments of such corresponding Trust
Mortgage Loan subsequent to the Closing Date), minus (ii) the sum of (A) the
Master Servicing Fee Rate for such corresponding Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto), plus (B) the Trustee
Fee Rate, plus (C) if such corresponding Trust Mortgage Loan is an Outside
Serviced Trust Mortgage Loan, the related Outside Servicing Fee Rate; and (b)
with respect to any Loan REMIC Regular Interest that, as of the Closing Date,
corresponds to a Trust Mortgage Loan that accrues interest on an Actual/360
Basis, a rate per annum that is, for any Interest Accrual Period, equal to (i) a
fraction (expressed as a percentage), the numerator of which is the product of
12 times the Adjusted Actual/360 Accrued Interest Amount with respect to such
Loan REMIC Regular Interest for such Interest Accrual Period, and the
denominator of which is the Uncertificated Principal Balance of such Loan REMIC
Regular Interest immediately prior to the Distribution Date that corresponds to
such Interest Accrual Period, minus (ii) the sum of (A) the Master Servicing Fee
Rate for the corresponding Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto), plus (B) the Trustee Fee Rate.
"Loan REMIC Residual Interest" shall mean, subject to Section 2.06(b),
the sole uncertificated "residual interest", within the meaning of Section
860G(a)(2) of the Code, in each Loan REMIC.
"Lockout Period" shall mean, with respect to any Mortgage Loan that
prohibits the Mortgagor from prepaying such loan until a date specified in the
related Mortgage Note or other loan document, the period from the Closing Date
until such specified date.
"Loss of Value Payment" shall have the meaning assigned thereto under
Section 2.03(e).
"Loss of Value Reserve Fund" shall mean the account or accounts
created and maintained by the Trustee pursuant to Section 3.04(e), which shall
be entitled "[NAME OF TRUSTEE], as Trustee, in trust for the registered holders
of LB-UBS Commercial Mortgage Trust 2007-C2, Commercial Mortgage Pass-Through
Certificates, Series 2007-C2, Loss of Value Reserve Fund". The Loss of Value
Reserve Fund shall be designated as an "outside reserve fund" (within the
meaning of Treasury regulations section 1.860G-2(h)), pursuant to Section
2.05(b). The Loss of Value Reserve Fund will be part of the Trust Fund but not
part of the Grantor Trust (if created hereunder taking into account Section
2.05(b)) or any REMIC Pool.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any Loan REMIC Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated
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Principal Balance (without any corresponding deemed distribution of
principal) on all prior Distribution Dates, if any, pursuant to Section
4.04(d), over (ii) the total amount reimbursed to REMIC I with respect to
any Loss Reimbursement Amount for such Loan REMIC Regular Interest on all
prior Distribution Dates, if any, pursuant to Section 4.01(n);
(b) with respect to any REMIC I Regular Interest, for any Distribution
Date, the excess, if any, of (i) the total amount of all reductions, if
any, made in the related Uncertificated Principal Balance (without any
corresponding deemed distribution of principal) on all prior Distribution
Dates, if any, pursuant to Section 4.04(c), over (ii) the total amount
reimbursed to REMIC II with respect to any Loss Reimbursement Amount for
such REMIC I Regular Interest on all prior Distribution Dates, if any,
pursuant to Section 4.01(m);
(c) with respect to any REMIC II Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated Principal Balance
(without any corresponding deemed distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(b), over (ii) the sum
of (A) the total amount reimbursed to REMIC III with respect to any Loss
Reimbursement Amount for such REMIC II Regular Interest on all prior
Distribution Dates, if any, pursuant to Section 4.01(l), plus (B) the total
amount reinstated to the Uncertificated Principal Balance of such REMIC II
Regular Interest on all prior Distribution Dates, if any, pursuant to
Section 4.05(c); and
(d) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Class Principal Balance (without
any corresponding distribution of principal) on all prior Distribution
Dates, if any, pursuant to Section 4.04(a), over (ii) the sum of (A) the
total amount of such reductions reimbursed to the Holders of such Class of
Certificates with respect to any related Loss Reimbursement Amount on all
prior Distribution Dates, if any, pursuant to Section 4.01(a) or Section
4.01(b), as applicable, plus (B) the total amount of such reductions
reinstated to the Class Principal Balance of such Class of Certificates on
all prior Distribution Dates, if any, pursuant to Section 4.05(a).
"LUBS" shall mean LUBS, Inc.
"LUBS/Depositor Mortgage Loan Purchase Agreement" shall mean any
Mortgage Loan Purchase Agreement dated as of April 24, 2007, between LUBS as
mortgage loan seller, LBHI as an additional party and the Depositor, which will
only be executed and delivered if there is a LUBS Trust Mortgage Loan.
"LUBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by LUBS to the Depositor, pursuant to any LUBS/Depositor Mortgage
Loan Purchase Agreement. There are no LUBS Trust Mortgage Loans.
"Majority Controlling Class Certificateholder(s)" shall mean any
single Holder or group of Holders (or any single Certificate Owner or group of
Certificate Owners) of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class.
"Master Servicer" shall mean Wachovia, in its capacity as master
servicer hereunder, or any successor master servicer appointed as herein
provided.
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"Master Servicer Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Master Servicer Backup Certification" shall have the meaning assigned
thereto in Section 8.15(h).
"Master Servicer Certification" shall have the meaning assigned
thereto in Section 2.01(d).
"Master Servicer Indemnification Agreement" shall mean the Master
Servicer Indemnification Agreement dated as of April 24, 2007, between the
initial Master Servicer, the Depositor, Xxxxxx Brothers, UBS Global Asset
Management (US) Inc. and any other Underwriters.
"Master Servicer Remittance Amount" shall mean, with respect to any
Trust Master Servicer Remittance Date, an amount equal to: (a) the aggregate
amount of all payments and other collections on or with respect to the Trust
Mortgage Loans and any related REO Properties (including Loss of Value Payments
and, in the case of the initial Distribution Date, any Initial Deposits) that
(i) were Received by the Trust as of the close of business on the immediately
preceding applicable Determination Date and (ii) are on deposit or are required
to be on deposit in the Pool Custodial Account as of 12:00 noon (New York City
time) on such Trust Master Servicer Remittance Date, including any such payments
and other collections transferred or required to be transferred to the Pool
Custodial Account from the Pool REO Account (if established) and/or a Loan
Combination Custodial Account, net of (b) the portion of the aggregate amount
described in clause (a) of this definition that represents one or more of the
following--(i) scheduled Monthly Payments that are due on a Due Date following
the end of the related Collection Period (or, in the case of a scheduled Monthly
Payment that is due on a Due Date in the same month as such Trust Master
Servicer Remittance Date but subsequent to the end of the related Collection
Period, following the end of the calendar month in which such Trust Master
Servicer Remittance Date occurs), (ii) any amount payable or reimbursable to any
Person from the Pool Custodial Account pursuant to clauses (ii) through (xix) of
Section 3.05(a), (iii) any Excess Liquidation Proceeds and (iv) any amounts
deposited in the Pool Custodial Account in error.
"Master Servicer Remittance Date" shall mean, individually and
collectively, as applicable in the context used, (i) the related Loan
Combination Master Servicer Remittance Date with respect to each Serviced Loan
Combination and all related matters, and (ii) the Trust Master Servicer
Remittance Date with respect to the Mortgage Pool (exclusive of the Serviced
Combination Trust Mortgage Loans and any REO Trust Mortgage Loans with respect
to the Serviced Combination Trust Mortgage Loans) and all related matters.
"Master Servicer Reportable Event" shall mean any of the following
events, conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for example,
a servicing agreement with a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, but only if the Master Servicer or any Servicer retained or
engaged by the Master Servicer is a party to such agreement or has entered
into such agreement on behalf of the Trust (ITEM 1.01 ON FORM 8-K);
(ii) the termination of a definitive agreement that is material to the
Subject Securitization Transaction (otherwise than by expiration of the
agreement on its stated
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termination date or as a result of all parties completing their obligations
under such agreement), but only if the Master Servicer or any Servicer
retained or engaged by the Master Servicer is a party to such agreement or
has entered into such agreement on behalf of the Trust (ITEM 1.02 ON FORM
8-K);
(iii) the appointment of a receiver, fiscal agent or similar officer
for any Material Debtor in a proceeding under the U.S. Bankruptcy Code or
in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of
the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of a court
or governmental authority, but only if the subject Material Debtor is (A)
the Master Servicer, (B) any Servicing Representative of the Master
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a Performing
Serviced Mortgage Loan (ITEM 1.03(a) ON FORM 8-K);
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Serviced Mortgage Loan (ITEM 1.03(b)
ON FORM 8-K);
(v) any resignation, removal, replacement or substitution of (A) the
Master Servicer or (B) any Servicing Representative of the Master Servicer
that constitutes a Servicer contemplated by Item 1108(a)(2) of Regulation
AB (ITEM 6.02 ON FORM 8-K);
(vi) any appointment of (A) a new Master Servicer or (B) any new
Servicing Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(2) of Regulation AB (ITEM 6.02 ON FORM 8-K);
(vii) any nonpublic disclosure, by the Master Servicer or any Servicer
retained or engaged by the Master Servicer, with respect to the Subject
Securitization Transaction (other than disclosure required or expressly
permitted pursuant to this Agreement) that is required to be disclosed by
Regulation FD (17 C.F.R. Sections 243.100 through 243.103) (ITEM 7.01 ON
FORM 8-K);
(viii) any other information of importance to Certificateholders
(determined by the Master Servicer in accordance with the Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder, (B) the Master
Servicer has determined, in accordance with the Servicing Standard, is
reasonably likely to have an adverse effect on payments to the Holders of
any Class of Registered Certificates or a material adverse effect on
payments to the Holders of any Class of Non-Registered Certificates, and
(C) is directly related to a Performing Serviced Mortgage Loan (ITEM 8.01
ON FORM 8-K);
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(ix) the commencement or termination of, or any material developments
regarding, any legal proceedings pending against any Material Litigant, or
of which any property of a Material Litigant is the subject, or any threat
by a governmental authority to bring any such legal proceedings, that are
material to Certificateholders, but only if the Master Servicer is
controlling the subject litigation or if the subject Material Litigant is
(A) the Master Servicer, (B) any Servicing Representative of the Master
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a Performing
Serviced Mortgage Loan (ITEM 2 ON FORM 10-D AND GENERAL INSTRUCTION J TO
FORM 10-K);
(x) the receipt by or on behalf of the Master Servicer or any Servicer
retained or engaged by the Master Servicer of any updated financial
statements, balance sheets, rent rolls or other financial information
regarding a Significant Obligor with respect to a Performing Serviced
Mortgage Loan that is required to be provided under Item 1112(b) of
Regulation AB (ITEM 6 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K);
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the Master
Servicer to the Trustee and the Depositor in accordance with Section
8.15(b), whether the Master Servicer has become an affiliate (as defined in
Rule 405 of the Securities Act) of any of (A) the Trustee, (B) the Special
Servicer, (C) any Outside Servicer that constitutes a Servicer contemplated
by Item 1108(a)(3) of Regulation AB, (D) any Servicing Representative of
the Master Servicer that constitutes a Servicer contemplated by Item
1108(a)(3) of Regulation AB or (E) any Significant Obligor (GENERAL
INSTRUCTION J TO FORM 10-K); and
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement or arising out of an action by the Master Servicer in its
capacity as Master Servicer under this Agreement, any specific relationship
involving or relating to the Subject Securitization Transaction or the
Mortgage Loans contemplated by Item 1119(c) of Regulation AB between an
Unaffiliated Mortgage Loan Seller or the Trust, on the one hand, and the
Master Servicer or any Servicing Representative of the Master Servicer, on
the other hand (GENERAL INSTRUCTION J TO FORM 10-K).
"Master Servicing Fee" shall mean, with respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto) and
each Outside Serviced Trust Mortgage Loan (and any successor REO Trust Mortgage
Loan with respect thereto), the fee designated as such and payable to the Master
Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean: (a) with respect to each
Serviced Trust Mortgage Loan and any successor REO Trust Mortgage Loan with
respect thereto, a rate per annum equal to the related Administrative Cost Rate
minus the Trustee Fee Rate; (b) with respect to each Outside Serviced Trust
Mortgage Loan and any successor REO Trust Mortgage Loan with respect thereto,
0.01% per annum; (c) with respect to each Sears Tower Non-Trust Mortgage Loan
and any successor REO Mortgage Loan with respect thereto, 0.01% per annum; and
(d) with respect to each Serviced Note B Non-Trust Mortgage Loan and any
successor REO Mortgage Loan with respect thereto, 0.005% per annum.
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
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"Material Debtor" shall mean any of the following:
(i) the Trust;
(ii) LBHI;
(iii) each Unaffiliated Mortgage Loan Seller;
(iv) each of the parties to this Agreement;
(v) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(vi) any Significant Obligor;
(vii) any Enhancement/Support Provider; and
(viii) any other material party contemplated by Item 1100(d)(1) of
Regulation AB relating to the Subject Securitization Transaction.
"Material Document Defect" shall have the meaning assigned thereto in
Section 2.03(a).
"Material Litigant" shall mean any of the following:
(i) the Trust;
(ii) LBHI;
(iii) each Unaffiliated Mortgage Loan Seller;
(iv) each of the parties to this Agreement;
(v) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(vi) any originator of Trust Mortgage Loans contemplated by Item
1110(b) of Regulation AB; and
(vii) any other party contemplated by Item 1100(d)(1) of Regulation AB
relating to the Subject Securitization Transaction.
"Maturity Date" shall mean, with respect to any Mortgage Loan as of
any date of determination, the Due Date on which the last payment of principal
is due and payable under the terms of the related Mortgage Note, as such terms
may be changed or modified from time to time in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the Special
Servicer (or the Master Servicer, if applicable) pursuant to Section 3.20.
"Mediation Letter" shall have the meaning assigned thereto in Section
2.03(i).
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"Modified Loan" shall mean any Serviced Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the related Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount, or the delivery of substitute real property
collateral with a fair market value (as is), that is not less than the fair
market value (as is) of the property to be released, as determined by an
appraisal delivered to the Special Servicer (at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment" shall mean, with respect to any Trust Mortgage Loan
or Serviced Non-Trust Mortgage Loan, as of any Due Date, the scheduled monthly
debt service payment (or, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, the monthly debt service payment required to be paid
on a current basis) on such Mortgage Loan that is actually payable by the
related Mortgagor from time to time under the terms of the related Mortgage Note
(as such terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust
Mortgage Loan, by the applicable Outside Servicer pursuant to the related
Outside Servicing Agreement), including any Balloon Payment payable in respect
of such Mortgage Loan on such Due Date; provided that the Monthly Payment due in
respect of any Mortgage Loan shall not include Default Interest; and provided,
further, that the Monthly Payment due in respect of any ARD Mortgage Loan after
its Anticipated Repayment Date shall not include Additional Interest; and
provided, further, that if the related loan documents for any Loan Combination
provide for a single monthly debt service payment for the entire such Loan
Combination, then the Monthly Payment for each Mortgage Loan comprising such
Loan Combination for any Due Date shall be that portion of the monthly debt
service payment for such Loan Combination and such Due Date that is, in
accordance with the related loan documents and/or the related Co-Lender
Agreement, in the absence of default, allocable to interest at the related
Mortgage Rate on and/or principal of the subject Mortgage Loan comprising such
Loan Combination.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its successor
in interest.
"Mortgage" shall mean, with respect to any Mortgage Loan, individually
and collectively, the mortgage(s), deed(s) of trust, deed(s) to secure debt
and/or similar instrument(s) that secures or secure, as the case may be, such
Mortgage Loan and creates or create, as the case may be, a lien on the related
Mortgaged Property.
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"Mortgage File" shall mean:
(a) with respect to any Serviced Trust Mortgage Loan and, in the case
of each Serviced Loan Combination, also with respect to each Serviced
Non-Trust Mortgage Loan that is part of such Loan Combination, the
following documents collectively (which, in the case of each Serviced Loan
Combination, except for the Mortgage Notes referred to in clause (a)(i) of
this definition and any modifications thereof referred to in clause
(a)(xiii) of this definition, relate to the entire such Loan Combination):
(i) (A) the original executed Mortgage Note for such Trust
Mortgage Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of "LaSalle Bank
National Association, as trustee for the registered holders of
LB-UBS Commercial Mortgage Trust 2007-C2, Commercial Mortgage
Pass-Through Certificates, Series 2007-C2" or in blank, and
further showing a complete, unbroken chain of endorsement from
the originator (if such originator is other than the related
Mortgage Loan Seller) (or, alternatively, if the original
executed Mortgage Note has been lost, a lost note affidavit
and indemnity with a copy of such Mortgage Note), and (B) in
the case of each Serviced Loan Combination, a copy of the
executed Mortgage Note for each Serviced Non-Trust Mortgage
Loan in such Loan Combination;
(ii) an original or a copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in
each case (unless the particular item has not been returned
from the applicable recording office) with evidence of
recording indicated thereon;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening
assignments thereof, in each case (unless the particular item
has not been returned from the applicable recording office)
with evidence of recording indicated thereon;
(iv) an original executed assignment, in recordable form (except
for recording information not yet available if the instrument
being assigned has not been returned from the applicable
recording office), of (A) the Mortgage and (B) any related
Assignment of Leases (if such item is a document separate from
the Mortgage), in favor of "LaSalle Bank National Association,
in its capacity as trustee for the registered holders of
LB-UBS Commercial Mortgage Trust 2007-C2, Commercial Mortgage
Pass-Through Certificates, Series 2007-C2" (or, in the case of
a Serviced Loan Combination, in favor of "LaSalle Bank
National Association, in its capacity as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2007-C2, Commercial Mortgage Pass-Through Certificates, Series
2007-C2, and in its capacity as lead lender on behalf of the
[IDENTIFY RELATED SERVICED NON-TRUST MORTGAGE LOAN
NOTEHOLDER(S)]") (or, in each case, a copy thereof, certified
to be the copy of such assignment submitted for recording);
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(v) an original or a copy of the assignment of all unrecorded
documents relating to such Trust Mortgage Loan, in favor of
"LaSalle Bank National Association, as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2007-C2, Commercial Mortgage Pass-Through Certificates, Series
2007-C2" (or, in the case of a Serviced Loan Combination, in
favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2007-C2, Commercial Mortgage Pass-Through
Certificates, Series 2007-C2, and in its capacity as lead
lender on behalf of the [IDENTIFY RELATED SERVICED NON-TRUST
MORTGAGE LOAN NOTEHOLDER(S)]");
(vi) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Trust
Mortgage Loan (or, if such policy has not been issued, a
"marked-up" pro forma title policy marked as binding and
countersigned by the title insurer or its authorized agent, or
an irrevocable, binding commitment to issue such title
insurance policy);
(vii) an original or a copy of the Ground Lease relating to such
Trust Mortgage Loan, if any;
(viii) an original or a copy of the loan agreement for such Trust
Mortgage Loan, if any;
(ix) an original of the related guaranty of payment under such
Trust Mortgage Loan, if any;
(x) an original or a copy of the environmental indemnity from the
related Mortgagor, if any;
(xi) an original or a copy of the lock-box agreement or cash
management agreement relating to such Trust Mortgage Loan, if
any;
(xii) a copy of the original letter of credit in connection with
such Trust Mortgage Loan, if any;
(xiii) originals or copies of final written modification agreements
in those instances where the terms or provisions of the
Mortgage Note for such Trust Mortgage Loan (and/or, if
applicable, the Mortgage Note for a related Serviced Non-Trust
Mortgage Loan) or the related Mortgage have been modified as
to a monetary term or other material term thereof, in each
case (unless the particular item has not been returned from
the applicable recording office) with evidence of recording
indicated thereon if the instrument being modified is a
recordable document;
(xiv) only if such Trust Mortgage Loan is secured by a nursing
facility or hospitality property as identified on Schedule VI
hereto, filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator
of such Trust Mortgage Loan or in favor of any assignee prior
to the Trustee (but only to the extent the related Mortgage
Loan Seller had possession of such UCC
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Financing Statements prior to the Closing Date) and an
original assignment thereof, as appropriate, in form suitable
for filing, in favor of "LaSalle Bank National Association, in
its capacity as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2007-C2, Commercial Mortgage
Pass-Through Certificates, Series 2007-C2" (or, in the case of
a Serviced Loan Combination, in favor of "LaSalle Bank
National Association, in its capacity as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2007-C2, Commercial Mortgage Pass-Through Certificates, Series
2007-C2, and in its capacity as lead lender on behalf of the
[IDENTIFY RELATED SERVICED NON-TRUST MORTGAGE LOAN
NOTEHOLDER(S)]");
(xv) an original or a copy of the related security agreement (if
such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof;
(xvi) an original assignment of the related security agreement (if
such item is a document separate from the Mortgage and if such
item is not included in the assignment described in clause
(a)(iv) or clause (a)(v) of this definition), in favor of
"LaSalle Bank National Association, in its capacity as trustee
for the registered holders of LB-UBS Commercial Mortgage Trust
2007-C2, Commercial Mortgage Pass-Through Certificates, Series
2007-C2" (or, in the case of a Serviced Loan Combination, in
favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2007-C2, Commercial Mortgage Pass-Through
Certificates, Series 2007-C2, and in its capacity as lead
lender on behalf of the [IDENTIFY RELATED SERVICED NON-TRUST
MORTGAGE LOAN NOTEHOLDER(S)]");
(xvii) if such Trust Mortgage Loan is a Serviced Combination Trust
Mortgage Loan, a copy of the related Co-Lender Agreement;
(xviii) in the case of any Trust Mortgage Loan as to which there
exists a related mezzanine loan, the related intercreditor
agreement;
(xix) an original or a copy of any related Environmental Insurance
Policy; and
(xx) with respect to hospitality properties, a signed copy of the
franchise agreement (if any) and franchisor comfort letter (if
any); and
(b) with respect to each Outside Serviced Trust Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note for such Trust Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "LaSalle Bank National
Association, as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2007-C2, Commercial Mortgage
Pass-Through Certificates, Series 2007-C2" or in blank, and
further showing a complete, unbroken chain of endorsement from
the originator (if such originator is other than the related
Mortgage Loan Seller) (or, alternatively, if the original
executed
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Mortgage Note has been lost, a lost note affidavit and
indemnity with a copy of such Mortgage Note);
(ii) a copy of the executed related Co-Lender Agreement; and
(iii) a copy of the executed related Outside Servicing Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vii) through (a)(xx) of this definition, shall be
deemed to include such documents only to the extent the Trustee or a Custodian
on its behalf has actual knowledge of their existence.
"Mortgage Loan" shall mean any Trust Mortgage Loan or Non-Trust
Mortgage Loan. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File or otherwise held on behalf of the Trust and/or any affected
Non-Trust Mortgage Loan Noteholder(s), as applicable, including, in the case of
an Outside Serviced Loan Combination, any such documents held by or on behalf of
a related Non-Trust Mortgage Loan Noteholder.
"Mortgage Loan Origination Documents" shall mean, with respect to any
Serviced Trust Mortgage Loan, any of the following documents (other than any
document that constitutes part of the Mortgage File for such Serviced Trust
Mortgage Loan), if applicable with respect to such Serviced Trust Mortgage Loan:
copies of any final appraisal, final survey, final engineering report, final
environmental report, opinion letters of counsel to the related mortgagor
delivered in connection with the closing of such Serviced Trust Mortgage Loan,
escrow agreements, reserve agreements, organizational documentation for the
related mortgagor, organizational documentation for any related guarantor or
indemnitor (if the related guarantor or indemnitor is an entity), insurance
certificates or insurance review reports, leases for tenants representing 10% or
more of the annual income with respect to the related Mortgaged Property, final
seismic report and property management agreements, rent roll, property operating
statement and financial statements for the related guarantor or indemnitor, cash
management or lockbox agreement, zoning letters or zoning reports and the
documents, if any, specifically set forth on Schedule VIII hereto, but, in each
case, only if the subject document (a) was in fact obtained in connection with
the origination of such Serviced Trust Mortgage Loan, (b) is reasonably
necessary for the ongoing administration and/or servicing of such Serviced Trust
Mortgage Loan by the Master Servicer or Special Servicer in connection with its
duties under this Agreement, and (c) is in the possession or under the control
of the Depositor (if such Serviced Trust Mortgage Loan is a Xxxxxx Trust
Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (if such
Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan), as
applicable; provided that neither the Depositor nor any Unaffiliated Mortgage
Loan Seller shall be required to deliver any draft documents, privileged or
other communications or correspondence, credit underwriting or due diligence
analyses or information, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
"Mortgage Loan Purchase Agreement" shall mean the LBHI/Depositor
Mortgage Loan Purchase Agreement, the LUBS/Depositor Mortgage Loan Purchase
Agreement (if any) or a UMLS/Depositor Mortgage Loan Purchase Agreement, as
applicable.
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"Mortgage Loan Seller" shall mean a Xxxxxx Mortgage Loan Seller, the
UBS Mortgage Loan Seller, the Countrywide Mortgage Loan Seller or the Greenwich
Mortgage Loan Seller, as applicable.
"Mortgage Note" shall mean the original executed note (or, if
applicable, notes collectively) evidencing the indebtedness of a Mortgagor under
a Mortgage Loan, together with any rider(s), addendum(s) or amendment(s)
thereto, or any renewal, substitution or replacement of such note(s).
"Mortgage Pool" shall mean all of the Trust Mortgage Loans and any REO
Trust Mortgage Loans, collectively.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Trust Mortgage Loans as of the end of the related Collection Period, which
report shall contain substantially the categories of information regarding the
Trust Mortgage Loans set forth on Annexes A-1 through A-6 to the Prospectus
Supplement (calculated, where applicable, on the basis of the most recent
relevant information provided by the Mortgagors to the Master Servicer or the
Special Servicer, as the case may be, and by the Master Servicer or the Special
Servicer, as the case may be, to the Trustee), and which information shall be
presented in tabular format substantially similar to the format utilized on such
annexes and shall also include a loan-by-loan listing (in descending balance
order) showing loan number, property type, location, unpaid principal balance,
Mortgage Rate, paid-through date, maturity date, gross interest portion of the
Monthly Payment, principal portion of the Monthly Payment, and any Prepayment
Consideration received.
"Mortgage Rate" shall mean, with respect to each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto), the related annualized
rate at which interest is scheduled (in the absence of a default) to accrue on
such Mortgage Loan from time to time in accordance with the related Mortgage
Note, any related loan agreement and applicable law (and taking into account any
step-up or step-down in that rate for the Trust Mortgage Loans secured by the
Mortgaged Properties identified on the Trust Mortgage Loan Schedule as 200
Galleria, Xxxxxxx Maryland Portfolio II and Northstar, respectively), as such
rate may be modified in accordance with Section 3.20 (or, in the case of an
Outside Serviced Mortgage Loan, by the applicable Outside Servicer in accordance
with the related Outside Servicing Agreement) or in connection with a
bankruptcy, insolvency or similar proceeding involving the related Mortgagor. In
the case of any ARD Mortgage Loan, the related Mortgage Rate shall increase in
accordance with the related Mortgage Note if the particular loan is not paid in
full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean the real property subject to the lien
of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the context
may require, (i) the primary obligor or obligors under a Mortgage Note,
including any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note, and
(ii) the owner of the related Mortgaged Property, if such owner has executed the
related Mortgage with respect to the subject Mortgage Loan in addition to a
guaranty of the obligations of the named obligor on the related Mortgage Note,
and such guaranty is secured by such Mortgage; provided that the foregoing
definition of "Mortgagor" shall not include any guarantors except to the extent
described in clause (ii) above.
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"Net Aggregate Prepayment Interest Shortfall" shall mean, with respect
to any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred with respect to the Mortgage Pool in
connection with Principal Prepayments and/or, insofar as they result from the
application of Insurance Proceeds and/or Condemnation Proceeds, other early
recoveries of principal Received by the Trust on the Trust Mortgage Loans
(including Specially Serviced Trust Mortgage Loans) during the related
Collection Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the Collection Account for such Distribution Date pursuant to
Section 3.19(a) in connection with such Prepayment Interest Shortfalls.
"Net Default Charges" shall have, with respect to any Trust Mortgage
Loan or REO Trust Mortgage Loan, the meaning assigned thereto in Section
3.26(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any related Investment Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Investment
Period on funds held in such Investment Account (exclusive, in the case of a
Servicing Account, a Reserve Account or the Defeasance Deposit Account, of any
portion of such interest or other income payable to a Mortgagor in accordance
with the related loan documents and applicable law), exceeds the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of such funds in accordance with Section 3.06 (exclusive, in the
case of a Servicing Account, a Reserve Account or the Defeasance Deposit
Account, of any portion of such losses that were incurred in connection with
investments made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any related Investment Period, the amount by which the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of funds held in such Investment Account in accordance with
Section 3.06 (exclusive, in the case of a Servicing Account, a Reserve Account
or the Defeasance Deposit Account, of any portion of such losses that were
incurred in connection with investments made for the benefit of a Mortgagor),
exceeds the aggregate of all interest and other income realized during such
Investment Period on such funds (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
loan documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Mortgage
Loan or Administered REO Property, over the amount of all Liquidation Expenses
incurred with respect thereto.
"Net Prepayment Consideration" shall mean the Prepayment Consideration
Received by the Trust (or, if applicable, on behalf of a Serviced Non-Trust
Mortgage Loan Noteholder) with respect to any Mortgage Loan or REO Mortgage
Loan, net of any Workout Fee or Liquidation Fee payable in connection with the
receipt thereof.
"New Lease" shall mean any lease of an Administered REO Property
entered into at the direction of the Special Servicer, including any lease
renewed, modified or extended on behalf of the Trustee and, in the case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s).
"NMWHFIT" shall mean a "Non-Mortgage Widely Held Fixed Investment
Trust" as that term is defined in Treasury Regulations section 1.671-5(b)(12) or
successor provisions.
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"Non-Xxxxxx Trust Mortgage Loan" shall mean any Trust Mortgage Loan
(or portion thereof) that is not a Xxxxxx Trust Mortgage Loan. The Non-Xxxxxx
Trust Mortgage Loans consist of the UBS Trust Mortgage Loans, the Countrywide
Trust Mortgage Loan and the Greenwich Trust Mortgage Loan.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean:
(1) any P&I Advance previously made or proposed to be made in respect
of any Trust Mortgage Loan or REO Trust Mortgage Loan by the
Master Servicer, the Trustee or a Fiscal Agent, which P&I Advance
such party has determined in its reasonable, good faith judgment,
will not be ultimately recoverable from late payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds, or any
other recovery on or in respect of such Trust Mortgage Loan or
REO Trust Mortgage Loan, as the case may be; and
(2) any P&I Advance previously made or proposed to be made in respect
of any Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto that the Special Servicer has
determined, in accordance with the Servicing Standard, will not
be ultimately recoverable from late payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of such Serviced Trust Mortgage Loan or
REO Trust Mortgage Loan, as the case may be.
"Nonrecoverable Servicing Advance" shall mean:
(1) any Servicing Advance previously made or proposed to be made in
respect of any Serviced Mortgage Loan or Administered REO
Property by the Master Servicer, the Special Servicer, the
Trustee or a Fiscal Agent, which Servicing Advance such party has
determined, in its reasonable, good faith judgment, will not be
ultimately recoverable from late payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan (or, if such
Mortgage Loan is part of a Serviced Loan Combination, on or in
respect of such Loan Combination) or such Administered REO
Property, as the case may be; and
(2) any Servicing Advance previously made or proposed to be made in
respect of any Serviced Mortgage Loan or Administered REO
Property by the Master Servicer, the Trustee or a Fiscal Agent,
that the Special Servicer has determined, in accordance with the
Servicing Standard, will not be ultimately recoverable from late
payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds, or any other recovery on or in respect of
such Serviced Mortgage Loan (or, if such Mortgage Loan is part of
a Serviced Loan Combination, on or in
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respect of such Loan Combination) or such Administered REO
Property, as the case may be.
"Non-Registered Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of the Closing
Date, the Class X-CL, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class S, Class T, Class R-I, Class R-II and Class
R-III Certificates, the Class R-LR Certificates (if issued in accordance with
Section 2.06) and the Class V Certificates (if issued in accordance with Section
2.05) are Non-Registered Certificates.
"Non-Trust Mortgage Loan" shall mean any mortgage loan that is part of
a Loan Combination but is not included in the Trust Fund. The Non-Trust Mortgage
Loans consist of the State Street Building Non-Trust Mortgage Loans, the
Extendicare Portfolio Non-Trust Mortgage Loans, the Sears Tower Non-Trust
Mortgage Loans and the Serviced Note B Non-Trust Mortgage Loans.
"Non-Trust Mortgage Loan Noteholder" shall mean the holder of the
Mortgage Note for a Non-Trust Mortgage Loan.
"Non-Trust Mortgage Loan Securities" shall mean any securities
evidencing an interest in, or secured by, a Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto.
"Non-Trust Mortgage Loan Securitization Agreement" shall mean any
agreement governing the securitization of a Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto.
"Non-Trust Mortgage Loan Securitization Trust" shall mean any
commercial mortgage securitization trust that is similar to the Trust and holds
a Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Non-United States Securities Person" shall mean a Person that is not
a United States Securities Person.
"Non-United States Tax Person" shall mean a Person that is not a
United States Tax Person.
"Offering Memorandum" shall mean the Offering Memorandum dated April
24, 2007, relating to the Class X-CL, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class S and Class T Certificates.
"Officer's Certificate" shall mean a certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer, as the case may be, or
by a Responsible Officer of the Trustee or a Fiscal Agent, as the case may be,
and shall mean with respect to any other Person, a certificate signed by any of
the Chairman of the Board, the Vice Chairman of the Board, the President, any
Vice President or Managing Director, an Assistant Vice President or any other
authorized officer (however denominated) or another officer customarily
performing functions similar to those performed by any of the above designated
officers or, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
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"One Alliance Center Mortgaged Property" shall mean the Mortgaged
Property identified on the Trust Mortgage Loan Schedule as One Alliance Center.
"One Alliance Center Note A-1 Trust Mortgage Loan" shall mean the
portion of the One Alliance Center Trust Mortgage Loan that is evidenced by the
promissory note designated note A-1.
"One Alliance Center Note A-2 Trust Mortgage Loan" shall mean the
portion of the One Alliance Center Trust Mortgage Loan that is evidenced by the
promissory note designated note A-2.
"One Alliance Center Trust Mortgage Loan" shall mean the Trust
Mortgage Loan that is identified on the Trust Mortgage Loan Schedule by loan
number 4, is collectively evidenced by two (2) separate promissory notes
designated as note A-1 and note A-2, and is secured by one or more mortgages,
deeds of trust, deeds to secure debt or similar instruments encumbering on the
One Alliance Center Mortgaged Property.
"One Alliance Center Trust Mortgage Loan Portion" shall mean the One
Alliance Center Note A-1 Trust Mortgage Loan or the One Alliance Center Note A-2
Trust Mortgage Loan, as applicable.
"Opinion of Counsel" shall mean a written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor, the Master Servicer
or the Special Servicer, acceptable in form and delivered to the Trustee or any
other specified Person, as the case may be, except that any opinion of counsel
relating to (a) the qualification of any REMIC Pool as a REMIC, (b) compliance
with the REMIC Provisions, (c) qualification of the Grantor Trust (if created
hereunder taking into account Section 2.05(b)) as a grantor trust, (d) whether
any act or event would cause an Adverse REMIC Event or Adverse Grantor Trust
Event, as may be applicable, or (e) the resignation of the Master Servicer or
the Special Servicer pursuant to this Agreement, must be a written opinion of
Independent counsel acceptable to and delivered to the Trustee or any other
specified Person, as the case may be.
"Original Class Notional Amount" shall mean, with respect to any Class
of Interest-Only Certificates, the initial Class Notional Amount thereof as of
the Closing Date, which shall equal $2,132,641,116, in the case of the Class
X-CL Certificates, $1,967,313,600, in the case of the Class X-CP Certificates,
and $1,421,760,744, in the case of the Class X-W Certificates.
"Original Class Principal Balance" shall mean, with respect to any
Class of Principal Balance Certificates, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Outside Administered REO Property" shall mean any REO Property
relating to an Outside Serviced Trust Mortgage Loan.
"Outside Master Servicer" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or related REO Property, the related master
servicer under the related Outside Servicing Agreement.
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"Outside Serviced Loan Combination" shall mean a Loan Combination that
includes an Outside Serviced Trust Mortgage Loan and as to which most material
servicing functions are being performed under an Outside Servicing Agreement.
The Outside Serviced Loan Combinations consist of the Extendicare Portfolio Loan
Combination and the State Street Building Loan Combination.
"Outside Serviced Mortgage Loan" shall mean any Outside Serviced Trust
Mortgage Loan or Outside Serviced Non-Trust Mortgage Loan, as applicable.
"Outside Serviced Non-Trust Mortgage Loan" shall mean any Non-Trust
Mortgage Loan that is part of an Outside Serviced Loan Combination.
"Outside Serviced Trust Mortgage Loan" shall mean any Trust Mortgage
Loan that is subject to an Outside Servicing Agreement. The Outside Serviced
Trust Mortgage Loans consist of the Extendicare Portfolio Trust Mortgage Loan
and the State Street Building Trust Mortgage Loan.
"Outside Servicer" shall mean, in the case of each Outside Serviced
Trust Mortgage Loan or related REO Property, the related Outside Master Servicer
or Outside Special Servicer, as applicable.
"Outside Servicer Default" shall mean an "event of default" on the
part of an Outside Servicer under an Outside Servicing Agreement.
"Outside Servicing Agreement" shall mean a servicing agreement (other
than a Sub-Servicing Agreement or an agreement whereby any Person acts as agent,
sub-contractor or vendor on behalf of the Master Servicer, the Special Servicer
or the Trustee) that governs most material servicing functions with respect to
any Trust Mortgage Loan or related REO Property. The Outside Servicing
Agreements consist of the Extendicare Portfolio Servicing Agreement and the
State Street Building Servicing Agreement.
"Outside Servicing Fee" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, the monthly fee, comparable to the Master Servicing Fee
hereunder and calculated at the related Outside Servicing Fee Rate, that is
payable to the related Outside Master Servicer (or, if applicable, to the
related Outside Master Servicer and a primary servicer in the aggregate).
"Outside Servicing Fee Rate" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, the rate per annum at which the Outside Servicing Fee is being
calculated (which is 0.01% per annum for each Outside Serviced Trust Mortgage
Loan).
"Outside Special Servicer" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or related REO Property, the related special
servicer under the related Outside Servicing Agreement.
"Outside Trustee" shall mean, with respect to any Outside Serviced
Non-Trust Mortgage Loan that is included in a Non-Trust Mortgage Loan
Securitization Trust, the trustee under the applicable Non-Trust Mortgage Loan
Securitization Agreement.
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"Ownership Interest" shall mean, as to any Certificate, any ownership
or security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance" shall mean, as to any Trust Mortgage Loan or REO Trust
Mortgage Loan, any advance made by the Master Servicer, the Trustee or any
Fiscal Agent pursuant to Section 4.03.
"Pari Passu Mortgage Loan" shall mean each of: (a) the State Street
Building Trust Mortgage Loan and the State Street Building Non-Trust Mortgage
Loans; (b) the Extendicare Portfolio Trust Mortgage Loan and the Extendicare
Portfolio Non-Trust Mortgage Loans and (c) the Sears Tower Trust Mortgage Loan
and the Sears Tower Pari Passu Non-Trust Mortgage Loan.
"Pari Passu Non-Trust Mortgage Loan" shall mean any Non-Trust Mortgage
Loan (or portion thereof) that is a Pari Passu Mortgage Loan.
"Pari Passu Trust Mortgage Loan" shall mean any Trust Mortgage Loan
(or portion thereof) that is a Pari Passu Mortgage Loan.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates, for any Interest
Accrual Period, 5.22600% per annum;
(b) with respect to the Class A-2 Certificates, for any Interest
Accrual Period, 5.30300% per annum;
(c) with respect to the Class A-AB Certificates, for any Interest
Accrual Period, 5.35100% per annum;
(d) with respect to the Class A-3 Certificates, for any Interest
Accrual Period, 5.43000% per annum;
(e) with respect to the Class A-1A Certificates, for any Interest
Accrual Period, 5.38700% per annum;
(f) with respect to the Class A-M Certificates, for any Interest
Accrual Period, 5.49300% per annum;
(g) with respect to the Class A-J Certificates, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) the REMIC II
Remittance Rate for each Corresponding REMIC II Regular Interest for such
Interest Accrual Period and (ii) 5.56200% per annum;
(h) with respect to the Class B Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the REMIC II Remittance
Rate for each Corresponding REMIC II Regular Interest for such Interest
Accrual Period and (ii) 5.58200% per annum;
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(i) with respect to the Class C Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the REMIC II Remittance
Rate for each Corresponding REMIC II Regular Interest for such Interest
Accrual Period and (ii) 5.61100% per annum;
(j) with respect to the Class D Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the REMIC II Remittance
Rate for each Corresponding REMIC II Regular Interest for such Interest
Accrual Period and (ii) 5.65000% per annum;
(k) with respect to the Class E Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the REMIC II Remittance
Rate for each Corresponding REMIC II Regular Interest for such Interest
Accrual Period and (ii) 5.72900% per annum;
(l) with respect to the Class F Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the REMIC II Remittance
Rate for each Corresponding REMIC II Regular Interest for such Interest
Accrual Period and (ii) 5.77800% per annum;
(m) with respect to the Class G Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the REMIC II Remittance
Rate for each Corresponding REMIC II Regular Interest for such Interest
Accrual Period and (ii) 5.87900% per annum;
(n) with respect to each Class of the Class H, Class J and Class K
Certificates, for any Interest Accrual Period, an annual rate equal to the
REMIC II Remittance Rate for each Corresponding REMIC II Regular Interest
for such Interest Accrual Period;
(o) with respect to each Class of the Class L, Class M, Class N, Class
P, Class Q, Class S and Class T Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the REMIC II Remittance
Rate for each Corresponding REMIC II Regular Interest for such Interest
Accrual Period and (ii) 5.11400% per annum;
(p) with respect to any Class X-XX XXXXX III Component, for any
Interest Accrual Period, an annual rate equal to either: (i) if such Class
X-XX XXXXX III Component has a Corresponding Class X-CP REMIC III
Component, and if such Interest Accrual Period relates to, or otherwise
ends prior to, the Class X-CP Termination Date for such Corresponding Class
X- CP REMIC III Component, the excess, if any, of (A) the REMIC II
Remittance Rate with respect to such Class X-XX XXXXX III Component's
Corresponding REMIC II Regular Interest for such Interest Accrual Period,
over (B) the greater of (1) the Adjusted REMIC II Remittance Rate with
respect to such Class X-XX XXXXX III Component's Corresponding REMIC II
Regular Interest for such Interest Accrual Period and (2) the Reference
Rate for such Interest Accrual Period; or (ii) in all other cases, the
excess, if any, of (X) the REMIC II Remittance Rate with respect to such
Class X-XX XXXXX III Component's Corresponding REMIC II Regular Interest
for such Interest Accrual Period, over (Y) the Adjusted REMIC II Remittance
Rate with respect to such Class X-XX XXXXX III Component's Corresponding
REMIC II Regular Interest for such Interest Accrual Period;
(q) with respect to the Class X-CL Certificates, for any Interest
Accrual Period, an annual rate equal to the weighted average (expressed as
a percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X-XX XXXXX III Components for
such Interest Accrual Period, weighted on the basis of the respective
Component
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Notional Amounts of the Class X-XX XXXXX III Components outstanding
immediately prior to the related Distribution Date;
(r) with respect to any Class X-CP REMIC III Component, for any
Interest Accrual Period, an annual rate equal to either: (i) if such
Interest Accrual Period relates to, or otherwise ends prior to, the Class
X-CP Termination Date for such Class X-CP REMIC III Component, the excess,
if any, of (A) the lesser of (1) the REMIC II Remittance Rate with respect
to such Class X-CP REMIC III Component's Corresponding REMIC II Regular
Interest for such Interest Accrual Period and (2) the Reference Rate for
such Interest Accrual Period, over (B) the Adjusted REMIC II Remittance
Rate with respect to such Class X-CP REMIC III Component's Corresponding
REMIC II Regular Interest for such Interest Accrual Period; or (ii) if such
Interest Accrual Period relates to a Distribution Date subsequent to the
Class X-CP Termination Date for such Class X-CP REMIC III Component, 0% per
annum;
(s) with respect to the Class X-CP Certificates, for any Interest
Accrual Period, an annual rate equal to the weighted average (expressed as
a percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X-CP REMIC III Components for
such Interest Accrual Period, weighted on the basis of the respective
Component Notional Amounts of the Class X-CP REMIC III Components
outstanding immediately prior to the related Distribution Date; provided
that, for reporting purposes, the Pass-Through Rate of the Class X-CP
Certificates for each Interest Accrual Period shall be calculated in
accordance with the Prospectus Supplement;
(t) with respect to any REMIC III Component of the Class X-W
Certificates, for any Interest Accrual Period, an annual rate equal to the
excess, if any, of (X) the REMIC II Remittance Rate with respect to such
Class X-W REMIC III Component's Corresponding REMIC II Regular Interest for
such Interest Accrual Period, over (Y) the Adjusted REMIC II Remittance
Rate with respect to such Class X-W REMIC III Component's Corresponding
REMIC II Regular Interest for such Interest Accrual Period; and
(u) with respect to the Class X-W Certificates, for any Interest
Accrual Period, an annual rate equal to the weighted average (expressed as
a percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X-W REMIC III Components for
such Interest Accrual Period, weighted on the basis of the respective
Component Notional Amounts of the Class X-W REMIC III Components
outstanding immediately prior to the related Distribution Date.
"Payee" shall have the meaning assigned thereto in Section 2.01(c).
"PCAOB" shall mean the Public Company Accounting Oversight Board.
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the Original Class Principal Balance or
Original Class Notional Amount, as the case may be, of the relevant Class; and
(b) with respect to any other Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
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"Performing Serviced Mortgage Loan" shall mean any Corrected Mortgage
Loan and any Serviced Mortgage Loan as to which a Servicing Transfer Event has
never occurred.
"Performing Serviced Trust Mortgage Loan" shall mean any Trust
Mortgage Loan that is a Performing Serviced Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
paragraph (viii) of Schedule II.
"Permitted Investments" shall mean any one or more of the following
obligations or securities (including obligations or securities of the Trustee
(in its individual capacity) if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States
or any agency or instrumentality thereof (having original
maturities of not more than 365 days), provided that such
obligations are backed by the full faith and credit of the
United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest
may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with that
index;
(ii) repurchase obligations with respect to any security described in
clause (i) of this definition (having original maturities of not
more than 365 days), provided that the short-term deposit or
debt obligations of the party agreeing to repurchase such
obligations are rated in the highest rating category of each
Rating Agency (or, in the case of any Rating Agency, such lower
rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or any class of Specially
Designated Non-Trust Mortgage Loan Securities that is rated by
such Rating Agency, as evidenced in writing by such Rating
Agency). In addition, any such item by its terms must have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short-term
obligations of which are rated in the highest rating category of
each Rating Agency (or, in the case of any Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or any class of Specially
Designated Non-Trust Mortgage Loan Securities that is rated by
such Rating Agency, as evidenced in writing by such Rating
Agency). In addition, any such item by its terms must have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate
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index plus a single fixed spread (if any), and move
proportionately with that index;
(iv) commercial paper (having original maturities of not more than 90
days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated,
the commercial paper is United States Dollar denominated and
amounts payable thereunder are not subject to any withholding
imposed by any non-United States jurisdiction) which is rated in
the highest rating category of each Rating Agency (or, in the
case of any Rating Agency, such lower rating as will not result
in an Adverse Rating Event with respect to any Class of
Certificates or any class of Specially Designated Non-Trust
Mortgage Loan Securities that is rated by such Rating Agency, as
evidenced in writing by such Rating Agency). In addition, such
commercial paper by its terms must have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such
interest is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(v) units of money market funds rated in the highest applicable
rating category of each Rating Agency (or, in the case of any
Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Certificates
or any class of Specially Designated Non-Trust Mortgage Loan
Securities that is rated by such Rating Agency, as evidenced in
writing by such Rating Agency) and which seeks to maintain a
constant net asset value; and
(vi) any other obligation or security that (A) is acceptable to each
Rating Agency, evidence of which acceptability shall (1) in the
case of any Rating Agency, be evidenced in a writing by such
Rating Agency to the effect that such obligation or security
will not result in an Adverse Rating Event with respect to any
Class of Certificates or any class of Specially Designated
Non-Trust Mortgage Loan Securities that is rated by such Rating
Agency, or (2) otherwise be evidenced in a writing by each
Rating Agency to the Master Servicer, the Special Servicer and
the Trustee, (B) is rated in the highest applicable rating
category by each Rating Agency and (C) constitutes a "cash flow
investment" (within the meaning of the REMIC Provisions), as
evidenced by an Opinion of Counsel obtained at the expense of
the Person that wishes to include such obligation or security as
a Permitted Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating; and provided, further, that, with respect to
any investment of funds allocable to a Specially Designated Securitized
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto,
if any of the related Specially Designated
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Non-Trust Mortgage Loan Securities are rated by Xxxxx'x, then the term "Rating
Agency" as used in this definition shall be deemed to include Xxxxx'x.
"Permitted Purchase" shall mean:
(i) the repurchase of a Xxxxxx Trust Mortgage Loan or any related
REO Property by the Depositor, pursuant to Section 2.03;
(ii) the repurchase of a Non-Xxxxxx Trust Mortgage Loan or any
related REO Property by or on behalf of the related Unaffiliated
Mortgage Loan Seller, pursuant to the related Mortgage Loan
Purchase Agreement;
(iii) the purchase of a Specially Serviced Trust Mortgage Loan by a
Purchase Option Holder or its assignee, pursuant to Section
3.18;
(iv) the purchase of a Trust Mortgage Loan or REO Property by a
Controlling Class Certificateholder, the Special Servicer, the
Master Servicer, the Depositor or Xxxxxx Brothers, or the
acquisition thereof in exchange for Certificates, in any event
pursuant to Section 9.01;
(v) the purchase of a Mortgage Loan by the holder of a related
mezzanine loan in connection with a default under such Mortgage
Loan, as set forth in the related intercreditor agreement; or
(vi) in the case of a Combination Trust Mortgage Loan, the purchase
of such Mortgage Loan by a related Non-Trust Mortgage Loan
Noteholder or its designee, pursuant to the related Co-Lender
Agreement.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a Disqualified
Partnership, or (e) a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of a United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the related Class of Residual Interest
Certificates.
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"Pool Custodial Account" shall mean the segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "[NAME OF MASTER SERVICER], as Master Servicer, on behalf of [NAME OF
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS Commercial
Mortgage Trust 2007-C2, Commercial Mortgage Pass-Through Certificates, Series
2007-C2, Pool Custodial Account".
"Pool REO Account" shall mean the segregated account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled substantially as follows: "[NAME OF SPECIAL SERVICER], as Special
Servicer, on behalf of [NAME OF TRUSTEE], as Trustee, in trust for the
registered holders of LB-UBS Commercial Mortgage Trust 2007-C2, Commercial
Mortgage Pass-Through Certificates, Series 2007-C2, Pool REO Account".
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is prepaid prior to stated maturity, except that it is assumed that each
ARD Mortgage Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium, Yield
Maintenance Charge and/or Excess Defeasance Deposit Proceeds.
"Prepayment Consideration Entitlement" shall mean:
(i) with respect to (A) any Distribution Date on which any Net
Prepayment Consideration Received by the Trust on any Group 1
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto) is distributable and (B) any Class of YM
Principal Balance Certificates that is entitled to distributions
of principal with respect to Loan Group No. 1 on such
Distribution Date, for purposes of determining the portion of
such Net Prepayment Consideration distributable with respect to
such Class of YM Principal Balance Certificates, an amount equal
to the product of (x) the amount of such Net Prepayment
Consideration, multiplied by (y) a fraction (not greater than 1.0
or less than 0.0), the numerator of which is equal to the excess,
if any, of the Pass-Through Rate for such Class of YM Principal
Balance Certificates for the related Interest Accrual Period over
the relevant Discount Rate, and the denominator of which is equal
to the excess, if any, of the Mortgage Rate for such Trust
Mortgage Loan (or REO Trust Mortgage Loan) over the relevant
Discount Rate, and further multiplied by (z) a fraction, the
numerator of which is equal to the amount of principal to be
distributed on such Class of YM Principal Balance Certificates on
such Distribution Date pursuant to Section 4.01 with respect to
Loan Group No. 1, and the denominator of which is equal to the
portion, if any, of the Adjusted Principal Distribution Amount
for such Distribution Date that is attributable to Loan Group No.
1; and
(ii) with respect to (A) any Distribution Date on which any Net
Prepayment Consideration Received by the Trust on any Group 2
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto) is distributable and
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(B) any Class of YM Principal Balance Certificates that is
entitled to distributions of principal with respect to Loan Group
No. 2 on such Distribution Date, for purposes of determining the
portion of such Net Prepayment Consideration distributable with
respect to such Class of YM Principal Balance Certificates, an
amount equal to the product of (x) the amount of such Net
Prepayment Consideration, multiplied by (y) a fraction (not
greater than 1.0 or less than 0.0), the numerator of which is
equal to the excess, if any, of the Pass-Through Rate for such
Class of YM Principal Balance Certificates for the related
Interest Accrual Period over the relevant Discount Rate, and the
denominator of which is equal to the excess, if any, of the
Mortgage Rate for such Trust Mortgage Loan (or REO Trust Mortgage
Loan) over the relevant Discount Rate, and further multiplied by
(z) a fraction, the numerator of which is equal to the amount of
principal to be distributed on such Class of YM Principal Balance
Certificates on such Distribution Date pursuant to Section 4.01
with respect to Loan Group No. 2, and the denominator of which is
equal to the portion, if any, of the Adjusted Principal
Distribution Amount for such Distribution Date that is
attributable to Loan Group No. 2.
For purposes of the foregoing, to the extent that distributions of
principal on any Class of YM Principal Balance Certificates on any Distribution
Date could be made from principal amounts allocable to either Loan Group, the
Trustee shall assume that those distributions of principal on that Class of YM
Principal Balance Certificates on that Distribution Date are made from principal
amounts allocable to each Loan Group, on a pro rata basis in accordance with the
respective principal amounts allocable to each Loan Group that were available
for distributions of principal on that Class. In connection therewith, (i)
distributions of principal made with respect to the Class A-1A Certificates,
pursuant to subclause (i) of clause second of Section 4.01(a), on any
Distribution Date prior to both the Senior Class A Principal Distribution
Cross-Over Date and the Final Distribution Date, shall be deemed made solely
from principal amounts allocable to Loan Group No. 2, and (ii) all other
distributions of principal made with respect to any Class of Principal Balance
Certificates, pursuant to Section 4.01(a) or 4.01(b), on any Distribution Date,
shall be deemed made from principal amounts allocable to both Loan Groups (net
of any principal amounts allocable to Loan Group No. 2 that may have been
applied on such Distribution Date as contemplated by clause (i) of this
sentence).
"Prepayment Interest Excess" shall mean: (a) with respect to any
Serviced Mortgage Loan that was subject to a Principal Prepayment in full or in
part made (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal received) after its
Due Date in any applicable Collection Period, any payment of interest (net of
related Master Servicing Fees) actually collected from the related Mortgagor or
otherwise and intended to cover interest accrued on such Principal Prepayment
during the period from and after such Due Date (exclusive, however, of any
related Prepayment Consideration that may have been collected and, in the case
of an ARD Mortgage Loan after its Anticipated Repayment Date, further exclusive
of any Additional Interest); and (b) with respect to any Outside Serviced Trust
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
(or, if resulting from the application of Insurance Proceeds or Condemnation
Proceeds, any other early recovery of principal received) after its Due Date in
any applicable Underlying Collection Period, any payment of interest (net of
related Master Servicing Fees and Outside Servicing Fees) actually collected
from the related Mortgagor or otherwise and
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intended to cover interest accrued on such Principal Prepayment during the
period from and after such Due Date (exclusive, however, of any related
Prepayment Consideration that may have been collected).
"Prepayment Interest Shortfall" shall mean: (a) with respect to any
Serviced Mortgage Loan that was subject to a Principal Prepayment in full or in
part made (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal received) prior to
its Due Date in any applicable Collection Period, the amount of interest, to the
extent not collected from the related Mortgagor or otherwise (without regard to
any Prepayment Consideration that may have been collected), that would have
accrued at a rate per annum equal to the related Mortgage Rate (reduced, in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date, by the
related Additional Interest Rate) on the amount of such Principal Prepayment
during the period from the date to which interest was paid by the related
Mortgagor to, but not including, such Due Date (exclusive of any related Master
Servicing Fees that would have been payable out of such uncollected interest);
and (b) with respect to any Outside Serviced Trust Mortgage Loan that was
subject to a Principal Prepayment in full or in part made (or, if resulting from
the application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal received) prior to its Due Date in any applicable
Underlying Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor or otherwise (without regard to any
Prepayment Consideration that may have been collected), that would have accrued
at a rate per annum equal to the related Mortgage Rate on the amount of such
Principal Prepayment during the period from the date to which interest was paid
by the related Mortgagor to, but not including, such Due Date (exclusive of any
related Master Servicing Fees and Outside Servicing Fees that would have been
payable out of such uncollected interest).
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge or any Excess Defeasance Deposit Proceeds) paid
or payable, as the context requires, as a result of a Principal Prepayment on,
or other early collection of principal of, a Mortgage Loan.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that are primarily
responsible for such party's servicing obligations hereunder. As of the Closing
Date, the Primary Servicing Office of the Master Servicer is located at 8739
Research Drive, URP4-NC 1075, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, and the
Primary Servicing Office of the Special Servicer is located at 0000 Xxxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate",
then the Trustee shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify any Fiscal Agent, the Master Servicer, the Special Servicer
and each Serviced Non-Trust Mortgage Loan Noteholder in writing of its
selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than an Interest-Only Certificate).
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"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) Received by the Trust with respect to the Trust Mortgage Loans
during the related Collection Period, in each case exclusive of any portion
of the particular payment that represents a Late Collection of principal
for which a P&I Advance was previously made under this Agreement for a
prior Distribution Date or that represents the principal portion of a
Monthly Payment due on or before the Cut-off Date or on a Due Date
subsequent to the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Trust Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were Received by the
Trust prior to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received by the Trust
on the Trust Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds Received by the Trust with respect to any Trust
Mortgage Loans during the related Collection Period that were identified
and applied by the Master Servicer as recoveries of principal of such Trust
Mortgage Loans, in each case exclusive of any portion of such proceeds that
represents a Late Collection of principal due on or before the Cut-off Date
or for which a P&I Advance was previously made under this Agreement for a
prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and REO Revenues Received by the Trust with respect to
any REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal of
the related REO Trust Mortgage Loans, in each case exclusive of any portion
of such proceeds and/or revenues that represents a Late Collection of
principal due on or before the Cut-off Date or for which a P&I Advance was
previously made under this Agreement for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
under this Agreement with respect to the Trust Mortgage Loans and any REO
Trust Mortgage Loans for such Distribution Date;
provided that none of the amounts set forth in clauses (a) through (f) of this
definition shall represent amounts received, due or advanced on or in respect of
any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Principal Prepayment" shall mean any voluntary payment of principal
made by or on behalf of the Mortgagor on a Mortgage Loan that is received in
advance of its scheduled Due Date, that is Received by the Trust and that is not
accompanied by an amount of interest (without regard to any Prepayment
Consideration that may have been collected) representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment.
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"Prohibited Transaction Exemption" shall mean Prohibited Transaction
Exemption 91-14 granted to a predecessor of Xxxxxx Brothers by the United States
Department of Labor, as such Prohibited Transaction Exemption may be amended
from time to time.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a)(iii).
"Prospectus" shall mean the prospectus dated April 16, 2007, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
April 24, 2007, relating to the Registered Certificates.
"PTCE" shall mean prohibited transaction class exemption.
"PTE" shall mean prohibited transaction exemption.
"Purchase Option Holders" shall have the meaning assigned thereto in
Section 3.18(b).
"Purchase Price" shall mean, with respect to any Trust Mortgage Loan
(or REO Property or, in the case of any REO Property that relates to a Loan
Combination, the Trust's interest therein), a cash price equal to the aggregate
of: (a) the outstanding principal balance of such Trust Mortgage Loan (or, in
the case of an REO Property, the related REO Trust Mortgage Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Trust Mortgage Loan
(or, in the case of an REO Property, the related REO Trust Mortgage Loan) to,
but not including, the Due Date in the applicable Collection Period of purchase
(exclusive, however, of any portion of such accrued but unpaid interest that
represents Default Interest or, if applicable, Additional Interest or Outside
Servicing Fees), (c) all related unreimbursed Servicing Advances with respect to
such Trust Mortgage Loan (or REO Property), if any, together with the amount of
any Servicing Advance (and accrued interest thereon in accordance with Section
3.11(g)) with respect to such Trust Mortgage Loan (or REO Property) that has
been previously reimbursed as a Nonrecoverable Advance out of general
collections of principal on the Mortgage Pool (but only to the extent such
amounts have not been reimbursed to the Trust), (d) all accrued and unpaid
interest, if any, in respect of related Advances in accordance with, as
applicable, Section 3.11(g) and/or Section 4.03(d), and (e) in the case of a
repurchase by the Depositor pursuant to Section 2.03 or by an Unaffiliated
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement,
(i) to the extent not otherwise included in the amount described in clause (d)
of this definition, any unpaid Special Servicing Fees and other Additional Trust
Fund Expenses with respect to such Trust Mortgage Loan (or REO Property),
including any Liquidation Fee that may be payable because the subject repurchase
occurred subsequent to the expiration of the Seller/Depositor Resolution Period
for the Material Document Defect or Material Breach, as applicable, that gave
rise to the repurchase, and (ii) to the extent not otherwise included in the
amount described in clause (c) of this definition, any costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee (on behalf
of the Trust) in enforcing the obligation of such Person to purchase such Trust
Mortgage Loan (or such REO Property or an interest therein); provided that, in
the case of a Trust Mortgage Loan that is part of a Loan Combination, the
Purchase Price calculated above may be reduced (subject to the provisions of the
related Co-Lender Agreement) by any related unpaid Master Servicing Fees,
unreimbursed Advances and/or, to the extent included therein pursuant to clause
(d) above, unpaid interest on Advances which, following the subject purchase,
will continue to be payable or reimbursable under the related Co-Lender
Agreement and/or any successor servicing agreement to the Master Servicer and/or
the Special Servicer
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in respect of such Trust Mortgage Loan (which amounts shall no longer be payable
hereunder); and provided, further, that, in the case of an REO Property that
relates to a Serviced Loan Combination, for purposes of Section 3.18, Section
6.11 and Section 6.12, the Purchase Price for such REO Property shall instead
equal the aggregate of the amounts described in clauses (a), (b), (c) and (d)
above with respect to all of the REO Mortgage Loans comprising such Loan
Combination.
"Qualified Bidder" shall have the meaning assigned thereto in Section
7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Mortgage" shall have the meaning assigned thereto in
Section 2.03(a).
"Rated Final Distribution Date" shall mean, with respect to each Class
of Principal Balance Certificates (other than the Class T Certificates), the
Distribution Date in February 2040.
"Rating Agency" shall mean each of S&P and Fitch.
"Realized Loss" shall mean:
(1) with respect to each Trust Mortgage Loan and Serviced Non-Trust
Mortgage Loan as to which a Final Recovery Determination has been made, or
with respect to any REO Mortgage Loan as to which a Final Recovery
Determination has been made as to the related REO Property, or with respect
to any Trust Mortgage Loan that was the subject of a Cash-Based Permitted
Purchase for less than the applicable Purchase Price, an amount (not less
than zero) equal to the excess, if any, of (a) the sum of (i) the unpaid
principal balance of such Mortgage Loan or REO Mortgage Loan, as the case
may be, as of the commencement of the applicable Collection Period in which
the Final Recovery Determination or purchase, as the case may be, was made,
plus (ii) without taking into account the amount described in subclause
(1)(b) of this definition, all accrued but unpaid interest on such Mortgage
Loan or such REO Mortgage Loan, as the case may be, to but not including
the Due Date in the applicable Collection Period in which the Final
Recovery Determination or purchase, as the case may be, was made
(exclusive, however, of any portion of such accrued but unpaid interest
that represents Default Interest or, in the case of an ARD Mortgage Loan or
any successor REO Mortgage Loan with respect thereto after its Anticipated
Repayment Date, Additional Interest), over (b) all payments and proceeds,
if any, received in respect of such Mortgage Loan or, to the extent
allocable to such REO Mortgage Loan, the related REO Property, as the case
may be, during the applicable Collection Period in which such Final
Recovery Determination or purchase, as the case may be, was made, insofar
as such payments and proceeds are allocable to interest (other than Default
Interest and Additional Interest) on or principal of such Mortgage Loan or
REO Mortgage Loan; provided that, in the case of any Outside Serviced Trust
Mortgage Loan or any related REO Trust Mortgage Loan that was the subject
of a Final Recovery Determination or a Cash-Based Permitted Purchase under
the related Outside Servicing Agreement and/or the related Co-Lender
Agreement, references to "Collection Period" in this clause (1) shall mean
the related Underlying Collection Period;
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(2) with respect to each Trust Mortgage Loan and Serviced Non-Trust
Mortgage Loan as to which any portion of the principal or previously
accrued interest payable thereunder was canceled in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Mortgage Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the
case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside
Servicer pursuant to the related Outside Servicing Agreement), the amount
of such principal and/or interest (other than Default Interest and, in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Additional Interest) so canceled;
(3) with respect to each Trust Mortgage Loan and Serviced Non-Trust
Mortgage Loan as to which the Mortgage Rate thereon has been permanently
reduced and not recaptured for any period in connection with a bankruptcy
or similar proceeding involving the related Mortgagor or a modification,
extension, waiver or amendment of such Mortgage Loan granted or agreed to
by the Special Servicer pursuant to Section 3.20 (or, in the case of an
Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer
pursuant to the related Outside Servicing Agreement), the amount of the
consequent reduction in the interest portion of each successive Monthly
Payment due thereon (each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment); and
(4) with respect to any Trust Mortgage Loan or REO Trust Mortgage
Loan, to the extent not otherwise taken into account as part of a Realized
Loss determined pursuant to any of clauses (1), (2) and (3) of this
definition, the amount of any related Advance that is reimbursed as a
Nonrecoverable Advance out of general collections on the Mortgage Pool (net
of any Recovered Amount in connection with the item for which such
Nonrecoverable Advance was made).
"Received by the Trust" shall mean: (a) in the case of an Outside
Serviced Trust Mortgage Loan or any related REO Property, received by the
Trustee (or the Master Servicer on behalf of the Trustee), as holder of the
Mortgage Note for such Outside Serviced Trust Mortgage Loan, on behalf of the
Trust; and (b) in the case of any other Trust Mortgage Loan or REO Property,
received by the Master Servicer or any of its Sub-Servicers, the Special
Servicer or any of its Sub-Servicers or the Trustee, as the case may be, in any
event on behalf of the Trust.
"Record Date" shall mean, with respect to any Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs; provided that, if the initial Distribution Date occurs
in the same calendar month as the Closing Date, then the Record Date for the
initial Distribution Date shall be the Closing Date.
"Recording Agent" shall have the meaning assigned thereto in Section
2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in Section
1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the applicable rate per annum set forth on the Reference Rate Schedule.
"Reference Rate Schedule" shall mean the list of Reference Rates set
forth on the schedule attached hereto as Schedule X.
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"Registered Certificate" shall mean any Certificate that has been the
subject of registration under the Securities Act. As of the Closing Date, the
Class X-0, Xxxxx X-0, Class A-AB, Class A-3, Class A-1A, Class X-CP, Class X-W,
Class A-M, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any REMIC III Certificate
other than a Class R-III Certificate.
"Regulation AB" shall mean Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, one or collectively more global
Certificates of such Class registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, each of
which Certificates bears a Regulation S CUSIP number.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, compounded annually, on Servicing Advances in accordance
with Section 3.11(g) and on P&I Advances in accordance with Section 4.03(d),
which rate per annum is equal to the Prime Rate.
"Relevant Servicing Criteria" means, with respect to any of the
various parties listed on Exhibit T, the Servicing Criteria applicable to the
subject party, as set forth on Exhibit T attached hereto (as such Exhibit T may
be updated or limited (including, without limitation, by not requiring delivery
of certain of the items set forth therein) based on interpretive guidance
relating to Item 1122 of Regulation AB provided by the Commission or its staff,
which update or limitation is reasonably agreed to by the parties hereto). For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Sub-Servicing Function
Participant engaged by the Trustee, the Master Servicer or the Special Servicer,
the term "Relevant Servicing Criteria" shall refer to the respective portions of
the Relevant Servicing Criteria applicable to the Master Servicer, the Special
Servicer or the Trustee that the Sub-Servicing Function Participant has been
engaged to perform or has performed.
"Remaining Adjusted Principal Distribution Amount" shall mean, with
respect to any Class of Class B Through T Certificates for any Distribution
Date, an amount equal to the Adjusted Principal Distribution Amount for such
Distribution Date, reduced by all distributions of principal to be made on such
Distribution Date: (i) pursuant to Section 4.01(a) with respect to the Senior
Class A Certificates, the Class A-M Certificates and the Class A-J Certificates;
and (ii) pursuant to Section 4.01(b) with respect to any and all other Classes
of the Class B Through T Certificates that evidence a right to payment in
accordance with such Section 4.01(b) that is prior to the right to payment
evidenced by the subject Class of Class B Through T Certificates. The priority
of payments on the various Classes of the Class B Through T Certificates under
Section 4.01(b) shall be consistent with the alphabetic order of the respective
Class designations of such Classes of Certificates, with the Class B
Certificates
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entitling the Holders thereof to the highest payment priority under Section
4.01(b) as among the respective Classes of the Class B Through T Certificates
and the Class T Certificates entitling the Holders thereof to the lowest payment
priority under Section 4.01(b) as among the respective Classes of the Class B
Through T Certificates.
"Remaining Available Distribution Amount" shall mean, with respect to
any Class of Class B Through T Certificates for any Distribution Date, an amount
equal to the Available Distribution Amount for such Distribution Date, reduced
by all distributions to be made on such Distribution Date: (i) pursuant to
Section 4.01(a) with respect to the Senior Certificates, the Class A-M
Certificates and the Class A-J Certificates; and (ii) pursuant to Section
4.01(b) with respect to any and all other Classes of the Class B Through T
Certificates that evidence a right to payment in accordance with such Section
4.01(b) that is prior to the right to payment evidenced by the subject Class of
Class B Through T Certificates. The priority of payments on the various Classes
of the Class B Through T Certificates under Section 4.01(b) shall be consistent
with the alphabetic order of the respective Class designations of such Classes
of Certificates, with the Class B Certificates entitling the Holders thereof to
the highest payment priority under Section 4.01(b) as among the respective
Classes of the Class B Through T Certificates and the Class T Certificates
entitling the Holders thereof to the lowest payment priority under Section
4.01(b) as among the respective Classes of the Class B Through T Certificates.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets constituting the
primary trust created hereby and to be administered hereunder with respect to
which a separate REMIC election is to be made, and consisting of: (i) any Loan
REMIC Regular Interests; (ii) the Trust Mortgage Loans (exclusive of any Early
Defeasance Trust Mortgage Loans) as from time to time are subject to this
Agreement and all payments under and proceeds of such Trust Mortgage Loans
Received by the Trust after the Closing Date (other than any such payments
and/or proceeds that represent (A) scheduled payments of interest and principal
due in respect of the Trust Mortgage Loans on or before the Cut-off Date, or (B)
Additional Interest Received by the Trust in respect of the ARD Trust Mortgage
Loans, if any, after their respective Anticipated Repayment Dates), together
with all documents included in the related Mortgage Files; (iii) any REO
Properties (other than an REO Property acquired in respect of any Early
Defeasance Trust Mortgage Loan) as from time to time are subject to this
Agreement (or, in the case of any REO Property that relates to a Loan
Combination, the Trust's interest therein) and all income and proceeds
therefrom; (iv) such funds or assets (including any Initial Deposits) as from
time to time are deposited in the Pool Custodial Account, the Collection
Account, the Interest Reserve Account and, if established, the Pool REO Account,
exclusive of any such funds or assets that (A) are included in a Loan REMIC or
(B) represent Additional Interest Received by the Trust in respect of the ARD
Trust Mortgage Loans, if any, after their respective Anticipated Repayment
Dates; (v) to the extent not included in a Loan REMIC, the rights of the
Depositor under the UMLS/Depositor Mortgage Loan Purchase Agreement(s); and (vi)
to the extent not included in a Loan REMIC, the rights of the holder of the
Mortgage Note for each Trust Mortgage Loan that is part of a Loan Combination
under the related Co-Lender Agreement and, in the case of each Outside Serviced
Trust Mortgage Loan, under the related Outside Servicing Agreement; provided
that REMIC I shall not include the Non-Trust Mortgage Loans or any successor REO
Mortgage Loans with respect thereto or any payments or other collections of
principal, interest, Prepayment Consideration or other amounts collected on such
Non-Trust Mortgage
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Loans or any successor REO Mortgage Loans with respect thereto; and provided,
further, that REMIC I shall not include the Loss of Value Reserve Fund or any
amounts on deposit therein.
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I, as described in the Preliminary
Statement hereto.
"REMIC I Remittance Rate" shall mean: (a) with respect to any REMIC I
Regular Interest issued in respect of a Loan REMIC Regular Interest, a rate per
annum that is, for any Interest Accrual Period, equal to the Loan REMIC
Remittance Rate with respect to such Loan REMIC Regular Interest for such
Interest Accrual Period; (b) with respect to any REMIC I Regular Interest that,
as of the Closing Date, corresponds to a Trust Mortgage Loan (other than any
Early Defeasance Trust Mortgage Loan) that accrues interest on a 30/360 Basis, a
rate per annum that is, for any Interest Accrual Period, equal to (i) the
Mortgage Rate in effect for such corresponding Trust Mortgage Loan as of the
Closing Date (without regard to any modifications, extensions, waivers or
amendments of such corresponding Trust Mortgage Loan subsequent to the Closing
Date), minus (ii) the sum of (A) the Master Servicing Fee Rate for such
corresponding Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto, plus (B) the Trustee Fee Rate, plus (C) if such corresponding
Trust Mortgage Loan is an Outside Serviced Trust Mortgage Loan, the related
Outside Servicing Fee Rate; and (c) with respect to any REMIC I Regular Interest
that, as of the Closing Date, corresponds to a Trust Mortgage Loan (other than
any Early Defeasance Trust Mortgage Loan) that accrues interest on an Actual/360
Basis, a rate per annum that is, for any Interest Accrual Period, equal to (i) a
fraction (expressed as a percentage), the numerator of which is the product of
12 times the Adjusted Actual/360 Accrued Interest Amount with respect to such
REMIC I Regular Interest for such Interest Accrual Period, and the denominator
of which is the Uncertificated Principal Balance of such REMIC I Regular
Interest immediately prior to the Distribution Date that corresponds to such
Interest Accrual Period, minus (ii) the sum of (A) the Master Servicing Fee Rate
for the corresponding Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with respect thereto), plus (B) the Trustee Fee Rate.
"REMIC II" shall mean the segregated pool of assets consisting of all
of the REMIC I Regular Interests conveyed in trust to the Trustee for the
benefit of REMIC III, as holder of the REMIC II Regular Interests, and the
Holders of the Class R-II Certificates, pursuant to Section 2.09, with respect
to which a separate REMIC election is to be made.
"REMIC II Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at its REMIC II Remittance Rate in effect from time to
time and, further, shall be entitled to distributions of principal over time,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto. The designations for the respective REMIC II Regular Interests
are set forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate" shall mean, with respect to any REMIC II
Regular Interest for any Interest Accrual Period, an annual rate equal to the
Weighted Average REMIC I Remittance Rate for such Interest Accrual Period.
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"REMIC III" shall mean the segregated pool of assets consisting of all
of the REMIC II Regular Interests conveyed in trust to the Trustee for the
benefit of the Holders of the REMIC III Certificates, pursuant to Section 2.11,
with respect to which a separate REMIC election is to be made.
"REMIC III Certificate" shall mean any Class A-1, Class A-2, Class
A-AB, Class A-3, Class A-1A, Class X-CL, Class X-CP, Class X-W, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class P, Class Q, Class S or Class T
Certificate or any Class R-III Certificate.
"REMIC III Component" shall mean:
(a) with respect to the Class X-CL Certificates, any of the Class X-XX
XXXXX III Components;
(b) with respect to the Class X-CP Certificates, any of the Class X-CP
REMIC III Components; and
(c) with respect to the Class X-W Certificates, any of the Class X-W
REMIC III Components.
"REMIC Pool" shall mean any of REMIC I, REMIC II, REMIC III and,
subject to Section 2.06(b), the Loan REMICs.
"REMIC Provisions" shall mean the provisions of the federal income tax
law relating to REMICs, which appear at Sections 860A through 860G of Subchapter
M of Chapter 1 of the Code, and related provisions, and proposed, temporary and
final Treasury regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean the Pool REO Account or a Loan Combination
REO Account, as applicable.
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09 (or, in the case of any REO Property relating to an
Outside Serviced Trust Mortgage Loan, pursuant to the related Outside Servicing
Agreement).
"REO Disposition" shall mean the sale or other disposition of any
Administered REO Property pursuant to Section 3.18 (or, in the case of any REO
Property relating to an Outside Serviced Trust Mortgage Loan, pursuant to the
related Outside Servicing Agreement).
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan (or, if a Serviced
Loan Combination is involved, one of the two or more mortgage loans comprising
such Loan Combination) deemed for purposes hereof to be outstanding with respect
to each REO Property. Each REO Mortgage
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Loan shall be deemed to relate to and succeed the Mortgage Loan (or, in the case
of any REO Property that relates to a Serviced Loan Combination, one of the two
or more Mortgage Loans or, in the case of any REO Property that relates to an
Outside Serviced Loan Combination, the Trust Mortgage Loan) relating to the
subject REO Property. Each REO Mortgage Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Monthly
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan and the acquisition of the related REO
Property as part of the Trust Fund or, if applicable in the case of any REO
Property that relates to a Loan Combination, on behalf of the Trust and the
related Non-Trust Mortgage Loan Noteholder(s)). Each REO Mortgage Loan shall be
deemed to have an initial unpaid principal balance and, if applicable hereunder,
an initial Stated Principal Balance equal to the unpaid principal balance and
Stated Principal Balance, respectively, of its predecessor Mortgage Loan as of
the date of the related REO Acquisition. All Monthly Payments (other than a
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Mortgage
Loan delinquent in respect of its Balloon Payment) and other amounts due and
owing, or deemed to be due and owing, in respect of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of an REO Mortgage Loan. Amounts Received by the
Trust (or, if applicable, received on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder) with respect to each REO Mortgage Loan (after
provision for amounts to be applied to the payment of, or to be reimbursed to
the Master Servicer or the Special Servicer for the payment of, the costs of
operating, managing and maintaining any related Administered REO Property or for
the reimbursement of the Master Servicer, the Special Servicer, the Trustee or
any Fiscal Agent for any other related Servicing Advances) shall be treated:
first, as a recovery of accrued and unpaid interest on such REO Mortgage Loan at
the related Mortgage Rate (net, in the case of any successor REO Mortgage Loan
in respect of an Outside Serviced Trust Mortgage Loan, of any related Outside
Servicing Fees payable therefrom) to but not including the Due Date in the
related Collection Period of receipt (exclusive, however, in the case of an REO
Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated
Repayment Date, of any such accrued and unpaid interest that constitutes
Additional Interest); second, as a recovery of principal of such REO Mortgage
Loan to the extent of its entire unpaid principal balance; third, in accordance
with the normal servicing practices of the Master Servicer, as a recovery of any
other amounts (or, in the case of an REO Mortgage Loan in respect of an Outside
Serviced Trust Mortgage Loan, any Prepayment Consideration) due and owing in
respect of such REO Mortgage Loan (exclusive, however, in the case of an REO
Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated
Repayment Date, of any such accrued and unpaid interest that constitutes
Additional Interest); and fourth, in the case of an REO Mortgage Loan that
relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a
recovery of accrued and unpaid Additional Interest on such REO Mortgage Loan;
provided that, in the case of an REO Mortgage Loan in respect of an Outside
Serviced Trust Mortgage Loan, if an allocation in accordance with this sentence
would conflict with remittance reports from the applicable Outside Servicer, the
Master Servicer shall, in the absence of actual knowledge of an error, rely on
the allocation in such remittance reports; and provided, further, that, if one
or more Advances previously made in respect of an REO Trust Mortgage Loan have
been reimbursed out of general collections of principal on the Mortgage Pool as
one or more Nonrecoverable Advances, then collections in respect of such REO
Trust Mortgage Loan available for application pursuant to clauses first through
fourth of this sentence shall instead be applied in the following order--(i) as
a recovery of accrued and unpaid interest on, and principal of, such REO Trust
Mortgage Loan, to the extent of any outstanding P&I Advances and unpaid Master
Servicing Fees in respect of such REO Trust Mortgage Loan, (ii) as a recovery of
the item(s) for which such previously reimbursed Nonrecoverable Advance(s) were
made (together with any interest on
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such previously reimbursed Nonrecoverable Advance(s) that was also paid out of
general collections of principal on the Mortgage Pool), and (iii) in accordance
with clauses first through fourth of this sentence (taking into account the
applications pursuant to clauses (i) and (ii) of this proviso); and provided,
further, that if the Mortgage Loans comprising any Serviced Loan Combination
become REO Mortgage Loans, amounts (other than Loss of Value Payments deemed to
constitute Liquidation Proceeds with respect to the REO Trust Mortgage Loan in
such Serviced Loan Combination and other than Liquidation Proceeds resulting
from the purchase of the Trust's interest in any related REO Property pursuant
to or as contemplated by Section 2.03) received with respect to such REO
Mortgage Loans shall be applied to amounts due and owing in respect of such REO
Mortgage Loans as provided in the related Co-Lender Agreement; and provided,
further, that Loss of Value Payments shall not be applied in accordance with the
foregoing provisions of this definition unless and until such amounts are
transferred to the Pool Custodial Account, and deemed to constitute Liquidation
Proceeds in respect of a particular REO Trust Mortgage Loan, in accordance with
Section 3.05(e). Notwithstanding the foregoing, all amounts payable or
reimbursable to the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including any unpaid Servicing Fees and any
unreimbursed Servicing Advances and P&I Advances, together with any interest
accrued and payable to the Master Servicer, the Special Servicer, the Trustee or
any Fiscal Agent in respect of such Servicing Advances and P&I Advances in
accordance with Sections 3.11(g) and 4.03(d), respectively, shall continue to be
payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or such Fiscal Agent, as the case may be, in respect of an REO Mortgage
Loan. The foregoing allocations are not intended to limit the rights of the
parties hereunder to reimbursements or indemnities to which they are otherwise
entitled hereunder.
"REO Property" shall mean a Mortgaged Property acquired on behalf and
in the name of the Trustee for the benefit of the Certificateholders (or, in the
case of a Mortgaged Property related to a Serviced Loan Combination, for the
benefit of the Certificateholders and the related Non-Trust Mortgage Loan
Noteholder(s), as their interests may appear), through foreclosure, acceptance
of a deed-in-lieu of foreclosure or otherwise in accordance with applicable law
in connection with the default or imminent default of a Mortgage Loan (or a Loan
Combination); provided that the Mortgaged Property securing an Outside Serviced
Loan Combination (if acquired under the related Outside Servicing Agreement)
shall constitute an REO Property if such Mortgaged Property is so acquired for
the benefit of the related Non-Trust Mortgage Loan Noteholder(s) and the Trust,
as their interests may appear, through foreclosure, acceptance of a deed-in-lieu
of foreclosure or otherwise in accordance with applicable law in connection with
a default or imminent default of the subject Outside Serviced Loan Combination.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section 3.17(a).
"REO Trust Mortgage Loan" shall mean the successor REO Mortgage Loan
with respect to any Trust Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
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"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR Section 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Serviced Mortgage Loan:
(i) that becomes a Modified Loan;
(ii) that is 60 days or more delinquent in respect of any Monthly
Payment, except for a Balloon Payment;
(iii) that is delinquent in respect of its Balloon Payment, if any,
(A) for one (1) Business Day beyond the date on which such Balloon Payment
was due (unless clause (B) below applies) or (B) if the related Mortgagor
shall have delivered a refinancing commitment acceptable to the Special
Servicer prior to the date when such Balloon Payment was due, for 30 days
beyond the date on which such Balloon Payment was due (or for such shorter
period ending on the date on which it is determined that the refinancing
could not reasonably be expected to occur);
(iv) with respect to which the related Mortgaged Property has become
an REO Property;
(v) with respect to which a receiver or similar official is appointed
and continues for 60 days in such capacity in respect of the related
Mortgaged Property;
(vi) with respect to which the related Mortgagor is subject to a
bankruptcy, insolvency or similar proceedings, which, in the case of an
involuntary bankruptcy, insolvency or similar proceeding, has not been
dismissed within 60 days of the commencement thereof; or
(vii) that remains outstanding five (5) years following any extension
of its maturity date pursuant to Section 3.20;
provided that all of the Mortgage Loans comprising a Serviced Loan Combination
shall, upon the occurrence of any of the events described in clauses (i) through
(vii) of this definition in respect of any such Mortgage Loan, be deemed to be a
single "Required Appraisal Loan". Any Required Appraisal Loan shall cease to be
such at such time as it has become a Corrected Mortgage Loan (assuming such
Required Appraisal Loan was a Specially Serviced Mortgage Loan), it has remained
current for at least three consecutive Monthly Payments, and no other event
described in clauses (i) through (vii) above has occurred with respect thereto
during the preceding three-month period. The term "Required Appraisal Loan"
shall include any successor REO Mortgage Loan(s) in respect of a Serviced Trust
Mortgage Loan or Serviced Loan Combination. In no event shall any Outside
Serviced Trust Mortgage Loan or any
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successor REO Trust Mortgage Loan with respect thereto or any Outside Serviced
Loan Combination constitute a Required Appraisal Loan hereunder.
"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal (as
such Appraised Value may be reduced by the Special Servicer, acting in
accordance with the Servicing Standard, based upon the Special Servicer's review
of the subject Required Appraisal and such other information that the Special
Servicer, acting in accordance with the Servicing Standard, deems relevant
(provided that the Special Servicer shall not be obligated to make any such
reduction)), over (ii) the amount of any obligations secured by liens on such
Mortgaged Property (or REO Property) that are prior to the lien of the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and Reserve
Funds held by the Master Servicer in respect of such Required Appraisal Loan
that (i) are not being held for purposes of paying any real estate taxes and
assessments, insurance premiums or, if applicable, ground rents, (ii) are not
otherwise scheduled to be applied or utilized (except to pay debt service on
such Required Appraisal Loan) within the 12-month period following the date of
determination and (iii) may be applied towards the reduction of the principal
balance of such Required Appraisal Loan; plus (c) the amount of any letter of
credit constituting additional security for such Required Appraisal Loan and
that may be drawn upon for purposes of paying down the principal balance of such
Required Appraisal Loan.
"Required Insurer Rating" shall mean:
(i) for purposes of Sections 3.07(a) and 3.07(b), a "claims paying
ability", "financial strength" or comparable rating, as applicable, of at
least "A" from S&P and "A" from Fitch (or, if not then rated by Fitch, an
equivalent rating thereto from at least one nationally recognized
statistical rating agency in addition to S&P or a rating of "A:IX" or
better from A.M. Best's Key Rating Guide) and, if applicable, "A3" from
Moody's (if then rated by Moody's) or, in the case of any such rating
agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Certificates or any class of Specially
Designated Non-Trust Mortgage Loan Securities rated by such rating agency
(as evidenced in writing by such rating agency); and
(ii) for purposes of Section 3.07(c), a "claims paying ability",
"financial strength" or comparable rating, as applicable, of at least "A"
from S&P and "A" from Fitch (or, if not then rated by Fitch, an equivalent
rating thereto from at least one nationally recognized statistical rating
agency in addition to S&P or a rating of "A:IX" or better from A.M. Best's
Key Rating Guide) and, if applicable, "A2" from Moody's (if then rated by
Moody's) or, in the case of any such rating agency, such lower rating as
will not result in an Adverse Rating Event with respect to any Class of
Certificates or any class of Specially Designated Non-Trust Mortgage Loan
Securities rated by such rating agency (as evidenced in writing by such
rating agency).
provided that, in the case of clause (i) of this definition, the references to
Moody's and any rating thereby shall not apply unless the subject insurance
relates to a Serviced Loan Combination that includes a Specially Designated
Securitized Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto and one or more classes of the related Specially Designated
Non-Trust Mortgage Loan Securities are rated by Moody's and, in the case of
clause (ii) of this definition, the references to
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Moody's and any rating thereof shall not apply unless one or more classes of any
Specially Designated Non-Trust Mortgage Loan Securities are rated by Moody's.
"Reserve Account" shall have the meaning assigned thereto in Section
3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean any of the Class R-I
Certificates, the Class R-II Certificates, the Class R-III Certificates or, if
issued in accordance with Section 2.06, the Class R-LR Certificates.
"Resolution Extension Period" shall have the meaning assigned thereto
in Section 2.03(a).
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any Trust Officer,
any Assistant Secretary or any other officer of the Trustee's Global Securities
and Trust Services customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of this Agreement; and (b) when used with respect to any Fiscal
Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates of such Class registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, and each
of which certificates has a Rule 144A CUSIP number.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the Trustee, any Fiscal Agent, the Master Servicer and the Special Servicer,
and specific ratings of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act" shall have the meaning assigned thereto in
Section 8.15(d).
"Xxxxxxxx-Xxxxx Certification" shall have the meaning assigned thereto
in Section 8.15(d).
"SASCO II" shall mean Structured Asset Securities Corporation II or
any successor in interest.
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"Scheduled Payment" shall mean, with respect to any Trust Mortgage
Loan or Serviced Non-Trust Mortgage Loan, for any Due Date following the Cut-off
Date as of which it is outstanding, the Monthly Payment on such Mortgage Loan
that is or would be, as the case may be, payable by the related Mortgagor on
such Due Date under the terms of the related Mortgage Note as in effect on the
Closing Date, without regard to any subsequent change in or modification of such
terms in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the
applicable Outside Servicer pursuant to the related Outside Servicing
Agreement), and assuming that the full amount of each prior Scheduled Payment
has been made in a timely manner.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Sears Tower Co-Lender Agreement" shall have the meaning assigned
thereto in the Preliminary Statement.
"Sears Tower Collection Period" shall mean, with respect to any Sears
Tower Master Servicer Remittance Date, Distribution Date or Trust Master
Servicer Remittance Date, the period commencing on the day immediately following
the Sears Tower Determination Date in the calendar month preceding the month in
which such Sears Tower Master Servicer Remittance Date, Distribution Date or
Trust Master Servicer Remittance Date, as the case may be, occurs (or, in the
case of each of the initial Sears Tower Master Servicer Remittance Date, the
initial Distribution Date or the initial Trust Master Servicer Remittance Date,
as the case may be, commencing immediately following the Cut-off Date) and
ending on and including the Sears Tower Determination Date in the calendar month
in which such Sears Tower Master Servicer Remittance Date, Distribution Date or
Trust Master Servicer Remittance Date, as the case may be, occurs.
"Sears Tower Controlling Party" shall mean the Serviced Loan
Combination Controlling Party with respect to the Sears Tower Loan Combination.
"Sears Tower Determination Date" shall have the meaning specified in
the definition of "Determination Date" in the Sears Tower Co-Lender Agreement.
"Sears Tower Directing Lender" shall mean the Serviced Loan
Combination Directing Lender with respect to the Sears Tower Loan Combination.
"Sears Tower Loan Combination" shall have the meaning assigned thereto
in the Preliminary Statement.
"Sears Tower Master Servicer Remittance Date" shall mean the Business
Day immediately succeeding the Sears Tower Determination Date.
"Sears Tower Mortgage Loan" shall mean the Sears Tower Trust Mortgage
Loan or any Sears Tower Non-Trust Mortgage Loan, as applicable.
"Sears Tower Mortgaged Property" shall have the meaning assigned
thereto in the Preliminary Statement.
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"Sears Tower Non-Trust Mortgage Loan Noteholder" shall mean the holder
(or, if applicable, the collective holders) of the Mortgage Note for a Sears
Tower Non-Trust Mortgage Loan.
"Sears Tower Non-Trust Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement.
"Sears Tower Noteholders" shall mean the holder of the Mortgage Note
for the Sears Tower Trust Mortgage Loan, together with the Sears Tower Non-Trust
Mortgage Loan Noteholders.
"Sears Tower Pari Passu Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Sears Tower Subordinate Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Sears Tower Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Seller/Depositor Notification" shall mean, with respect to any Trust
Mortgage Loan, a written notification executed (in each case promptly upon
becoming aware of such event) by a Responsible Officer of the Trustee, or a
Servicing Officer of the Master Servicer or the Special Servicer, as applicable,
and delivered to the Master Servicer, the Special Servicer and the Trustee
(except to the extent any of the foregoing three parties is the party delivering
the subject Seller/Depositor Notification) and, as applicable, to the related
Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan) or the Depositor (in the case of a Xxxxxx Trust Mortgage Loan), in each
case identifying and describing the circumstances relating to any of the events
set forth below, which notification shall be substantially in the form of
Exhibit N attached hereto:
(i) the occurrence of a Material Document Defect or Material Breach
with respect to the subject Trust Mortgage Loan;
(ii) the direction to cure the Material Document Defect or Material
Breach with respect to the subject Trust Mortgage Loan in all material
respects, or repurchase the subject Trust Mortgage Loan, within the time
period and subject to the conditions provided for in Section 2.03(a) (in
the case of a Xxxxxx Trust Mortgage Loan) or Section 5(a) of the related
Mortgage Loan Purchase Agreement (in the case of a Non-Xxxxxx Trust
Mortgage Loan), as applicable;
(iii) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of a Servicing Transfer Event
with respect to the subject Trust Mortgage Loan;
(iv) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of an assumption or a proposed
assumption with respect to the subject Trust Mortgage Loan;
(v) only (A) under the circumstances contemplated by the third
paragraph of Section 2.03(a) (in the case of a Xxxxxx Trust Mortgage Loan)
or the last paragraph of Section
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5(a) of the related Mortgage Loan Purchase Agreement (in the case of a
Non-Xxxxxx Trust Mortgage Loan), as applicable, and (B) following the
expiration of the applicable Resolution Extension Period and (C) following
either the occurrence of a Servicing Transfer Event or an assumption with
respect to the subject Trust Mortgage Loan, as applicable, the direction to
cure the subject Material Document Defect in all material respects within
15 days of receipt of such Seller/Depositor Notification;
(vi) following the expiration of the 15-day period set forth in clause
(v) above, notification of the election by the Master Servicer or the
Special Servicer, as applicable, to perform the cure obligations with
respect to the subject Material Document Defect; and/or
(vii) the expiration of the applicable Resolution Extension Period
with respect to such Trust Mortgage Loan and the direction to promptly
repurchase such Trust Mortgage Loan.
In addition to the foregoing parties, a copy of each such Seller/Depositor
Notification shall be delivered to the Controlling Class Representative by the
Trustee (to the extent the Trustee knows the identity of the Controlling Class
Representative) and, in the case of an event described in clauses (v) and/or
(vii) of this definition, to internal counsel to the Depositor or counsel to the
related Unaffiliated Mortgage Loan Seller, as applicable (to the extent known to
the Trustee).
"Seller/Depositor Resolution Period" shall mean the 90-day period
following the related Mortgage Loan Seller's receipt of a Seller/Depositor
Notification with respect to the Material Document Defect or Material Breach
that gave rise to the particular repurchase obligation; provided, however, that
if (i) such Material Document Defect or Material Breach is capable of being
cured but not within such 90-day period, (ii) the Depositor (in the case of a
Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in
the case of a Non-Xxxxxx Trust Mortgage Loan), as the case may be, has commenced
and is diligently proceeding with the cure of such Material Document Defect or
Material Breach within such initial 90-day period, and (iii) the Depositor (in
the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage
Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), as the case may
be, delivers an Officer's Certificate to the Special Servicer setting forth the
reasons such Material Document Defect or Material Breach is not capable of being
cured within the initial 90-day period and what actions such party is pursuing
in connection with the cure thereof, then the Seller/Depositor Resolution Period
shall mean the 180-day period following the related Mortgage Loan Seller's
receipt of a Seller/Depositor Notification with respect to the Material Document
Defect or Material Breach that gave rise to the particular repurchase
obligation; and provided, further, that, if any such Material Document Defect is
still not cured after the 180-day period following the related Mortgage Loan
Seller's receipt of a Seller/Depositor Notification with respect to the Material
Document Defect or Material Breach that gave rise to the particular repurchase
obligation solely due to the failure of the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the
case of a Non-Xxxxxx Trust Mortgage Loan), as the case may be, to have received
a recorded document, then the Seller/Depositor Resolution Period shall continue
for an additional period of time so long as the Depositor or the related
Unaffiliated Mortgage Loan Seller, as applicable, certifies to the Special
Servicer every six months thereafter that the Document Defect is still in effect
solely because of its failure to have received the recorded document and that
such party is diligently pursuing the cure of such defect.
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"Senior Certificate" shall mean any Class A-1, Class A-2, Class A-AB,
Class A-3, Class A-1A, Class X-CL, Class X-CP or Class X-W Certificate.
"Senior Class A Certificates" shall mean the Class A-1, Class A-2,
Class A-AB, Class A-3 and Class A-1A Certificates.
"Senior Class A Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of the commencement of business on which (i) any two
or more Classes of the Senior Class A Certificates remain outstanding and (ii)
the aggregate of the Class Principal Balances of the Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class S and Class T Certificates has been
reduced to zero as a result of the allocation of Realized Losses and Additional
Trust Fund Expenses pursuant to Section 4.04(a).
"Senior Non-Trust Mortgage Loan" shall mean any Non-Trust Mortgage
Loan(s) that are generally senior in right of payment to the corresponding Trust
Mortgage Loan in the subject Loan Combination. There are no Senior Non-Trust
Mortgage Loans.
"Senior/Subordinate Co-Lender Agreement" shall mean the Sears Tower
Co-Lender Agreement or an A/B Co-Lender Agreement.
"Serviced A/B Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement.
"Serviced Combination Trust Mortgage Loan" shall mean any Combination
Trust Mortgage Loan as to which most material servicing functions are governed
by this Agreement. The Serviced Combination Trust Mortgage Loans are the Sears
Tower Trust Mortgage Loan and the Serviced Note A Trust Mortgage Loans.
"Serviced Loan Combination" shall mean any Loan Combination as to
which most material servicing functions are governed by this Agreement. The
Sears Tower Loan Combination and the Serviced A/B Loan Combinations will be, and
the Outside Serviced Loan Combinations will not be, Serviced Loan Combinations.
"Serviced Loan Combination Change of Control Event" shall mean the
Loan Combination Change of Control Event for any Serviced Loan Combination.
"Serviced Loan Combination Controlling Party" shall mean the Loan
Combination Controlling Party for any Serviced Loan Combination.
"Serviced Loan Combination Directing Lender" shall mean the Loan
Combination Directing Lender for any Serviced Loan Combination.
"Serviced Mortgage Loan" shall mean each Mortgage Loan (including a
Specially Serviced Mortgage Loan), other than any Outside Serviced Mortgage
Loan.
"Serviced Non-Trust Mortgage Loan" shall mean each Non-Trust Mortgage
Loan that is a Serviced Mortgage Loan.
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"Serviced Non-Trust Mortgage Loan Noteholder" shall mean the holder of
the Mortgage Note for a Serviced Non-Trust Mortgage Loan.
"Serviced Note A Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Serviced Note B Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Serviced Pari Passu Loan Combination" shall mean a Serviced Loan
Combination that includes a Serviced Pari Passu Non-Trust Mortgage Loan. The
Sears Tower Loan Combination is the only Serviced Pari Passu Loan Combination.
"Serviced Pari Passu Non-Trust Mortgage Loan" shall mean each Pari
Passu Non-Trust Mortgage Loan that is a Serviced Non-Trust Mortgage Loan. The
Sears Tower Pari Passu Non-Trust Mortgage Loans are the only Serviced Pari Passu
Non-Trust Mortgage Loans.
"Serviced Pari Passu Non-Trust Mortgage Loan Noteholder" shall mean
the holder of the Mortgage Note for a Serviced Pari Passu Non-Trust Mortgage
Loan.
"Serviced Senior/Subordinate Loan Combination" shall mean each of the
Sears Tower Loan Combination and the Serviced A/B Loan Combinations.
"Serviced Senior Trust Mortgage Loan" shall mean each of the Sears
Tower Trust Mortgage Loan and the Serviced Note A Trust Mortgage Loans.
"Serviced Subordinate Non-Trust Mortgage Loan" shall mean each of the
Sears Tower Subordinate Non-Trust Mortgage Loans and the Serviced Note B
Non-Trust Mortgage Loans.
"Serviced Subordinate Non-Trust Mortgage Loan Noteholder" shall mean
the holder of the Mortgage Note for a Serviced Subordinate Non-Trust Mortgage
Loan.
"Serviced Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is a Serviced Mortgage Loan. Notwithstanding anything herein to the contrary, no
Outside Serviced Trust Mortgage Loan shall in any event constitute a Serviced
Trust Mortgage Loan hereunder.
"Servicer" shall mean any servicer (within the meaning of Item 1101(j)
of Regulation AB) with respect to the Subject Securitization Transaction.
"Servicer Backup Certification" shall mean the Master Servicer Backup
Certification or the Special Servicer Backup Certification, as applicable.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Serviced Mortgage Loan primary serviced by
such Sub-Servicer (and any successor REO Mortgage Loan with respect thereto),
(i) the principal balance of such Mortgage Loan as of the end of the immediately
preceding applicable Collection Period and (ii) the sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Mortgage Loan; and (b)
with respect to the Master Servicer, as of any date of
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determination, the aggregate of the products obtained by multiplying, for each
Serviced Mortgage Loan (and any successor REO Mortgage Loan with respect
thereto), (i) the principal balance of such Mortgage Loan as of the end of the
immediately preceding applicable Collection Period and (ii) the excess, if any,
of the Master Servicing Fee Rate for such Mortgage Loan, over the sub-servicing
fee rate (if any) applicable to such Mortgage Loan, as specified in any
Sub-Servicing Agreement related to such Mortgage Loan.
"Servicer Notice" shall have the meaning assigned thereto in Section
3.14.
"Servicer Reports" shall mean each of the files, reports and templates
comprising the CMSA Investor Reporting Package (excluding the CMSA Bond Level
File, the CMSA Collateral Summary File and each of the templates identified
under clause (c)(iii) through clause (c)(vi) of the definition of "CMSA Investor
Reporting Package") and the Supplemental Reports.
"Servicing Account" shall have the meaning assigned thereto in Section
3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer, any Fiscal Agent or the Trustee in connection with the
servicing and administration of a Serviced Mortgage Loan, if a default is
imminent thereunder or a default, delinquency or other unanticipated event has
occurred with respect thereto, or in connection with the administration of any
Administered REO Property, including, but not limited to, the cost of (a)
compliance with the obligations of the Master Servicer, the Special Servicer,
any Fiscal Agent or the Trustee, if any, set forth in Section 3.03(c), (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds, (d) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including foreclosures, (e) any Required Appraisal or
any other appraisal or update thereof expressly permitted or required to be
obtained hereunder, (f) the operation, management, maintenance and liquidation
of any REO Property, and (g) obtaining any related ratings confirmation;
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include allocable overhead of the Master Servicer, the Special
Servicer or the Trustee, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs and expenses incurred by any such
party in connection with its purchase of any Mortgage Loan or REO Property
pursuant to any provision of this Agreement, any Outside Servicing Agreement,
any Co-Lender Agreement or any intercreditor agreement relating to mezzanine
debt.
"Servicing Criteria" shall mean the "servicing criteria" set forth in
Item 1122(d) of Regulation AB, as such may be amended from time to time.
"Servicing Fees" shall mean: (a) with respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Master Servicing Fee and the Special Servicing Fee; and (b) with respect to each
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), the Master Servicing Fee.
"Servicing File" shall mean, collectively, any and all documents
(other than documents required to be part of the related Mortgage File, except
as specifically provided below in this definition), in the possession of the
Master Servicer or the Special Servicer and relating to the origination and
servicing of any Serviced Mortgage Loan, including any original letter of credit
(together with any
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transfer or assignment documents related thereto), any franchise agreement and
any franchise comfort letter (together with any transfer or assignment documents
relating thereto), appraisals, surveys, engineering reports, environmental
reports, opinion letters of counsel to a related Mortgagor, escrow agreements,
property management agreements and, in the case of a Serviced Non-Trust Mortgage
Loan, a copy of the related Mortgage Note.
"Servicing Function Participant" shall mean any of: (i) the Master
Servicer; (ii) the Special Servicer; (iii) the Trustee; and (iv) any other party
hereto, in addition to the Master Servicer, the Special Servicer and the
Trustee, that is a "party participating in the servicing function" (within the
meaning of the instructions to Item 1122 of Regulation AB) as regards the Trust
Fund.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Serviced Mortgage Loans, whose name and
specimen signature appear on a list of servicing officers furnished by such
party to the Trustee and the Depositor on the Closing Date, as such list may be
amended from time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Representative" shall mean, with respect to the Master
Servicer, the Special Servicer or the Trustee, any other Person (including any
Sub-Servicer, subcontractor, vendor or agent) retained or engaged thereby to
perform any duties in connection with this Agreement or all or any portion of
the Trust Fund, the performance of which duties would cause such other Person to
be, or result in such other Person being, a Servicer or a Sub-Servicing Function
Participant.
"Servicing-Retained Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Standard" shall mean, with respect to the Master Servicer
or the Special Servicer, to service and administer the Serviced Mortgage Loans
and any Administered REO Properties that such party is obligated to service and
administer pursuant to this Agreement: (i) in accordance with the higher of the
following standards of care: (A) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or the
Special Servicer, as the case may be, services and administers comparable
mortgage loans with similar borrowers and comparable foreclosure properties for
other third-party portfolios (giving due consideration to the customary and
usual standards of practice of prudent institutional commercial mortgage lenders
servicing their own mortgage loans and foreclosure properties), and (B) the same
manner in which, and with the same care, skill, prudence and diligence with
which, the Master Servicer or Special Servicer, as the case may be, services and
administers comparable mortgage loans and foreclosure properties owned by the
Master Servicer or Special Servicer, as the case may be, in either case
exercising reasonable business judgment and acting in accordance with applicable
law, the terms of this Agreement and the terms of the respective Serviced
Mortgage Loans and any applicable co-lender, intercreditor and/or similar
agreements; (ii) with a view to: (A) the timely recovery of all payments of
principal and interest, including Balloon Payments, under the Serviced Mortgage
Loans or, in the case of any such Serviced Mortgage Loan that is (1) a Specially
Serviced Mortgage Loan or (2) a Serviced Mortgage Loan as to which the related
Mortgaged Property has become an REO Property, the maximization of recovery on
the subject Serviced Mortgage Loan to the Certificateholders (as a collective
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whole) (or, if a Serviced Loan Combination is involved, the maximization of
recovery on such Loan Combination to the Certificateholders and the related
Serviced Non-Trust Mortgage Loan Noteholder(s) (as a collective whole)) of
principal and interest, including Balloon Payments, on a present value basis
(the relevant discounting of anticipated collections that will be distributable
to the Certificateholders (or, if a Serviced Loan Combination is involved, to
the Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole)) to be performed at the related Mortgage
Rate (or, in the case of a Serviced Loan Combination, at the weighted average of
the respective Mortgage Rates for the Mortgage Loans that comprise such Loan
Combination); and (iii) without regard to (A) any relationship, including as
lender on any other debt (including mezzanine debt or a Non-Trust Mortgage
Loan), that the Master Servicer or the Special Servicer, as the case may be, or
any Affiliate thereof, may have with any of the related Mortgagors, or any
Affiliate thereof, or any other party to this Agreement, (B) the ownership of
any Certificate or any direct or indirect interest in a Non-Trust Mortgage Loan
by the Master Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof, (C) the obligation of the Master Servicer or the Special
Servicer, as the case may be, to make Advances, (D) the right of the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof,
to receive compensation or reimbursement of costs hereunder generally or with
respect to any particular transaction, and (E) the ownership, servicing or
management for others of any other mortgage loan or real property not subject to
this Agreement by the Master Servicer or the Special Servicer, as the case may
be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any Serviced
Mortgage Loan, the occurrence of any of the events described in clauses (a)
through (g) of the definition of "Specially Serviced Mortgage Loan".
"Significant Obligor" shall mean: (a) any obligor (as defined in Item
1101(i) of Regulation AB) or group of affiliated obligors on any Trust Mortgage
Loan or group of Trust Mortgage Loans that represent, as of the Closing Date,
10% or more of the Mortgage Pool (by Cut-off Date Balance); or (b) any single
Mortgaged Property or group of Mortgaged Properties securing any Trust Mortgage
Loan or group of cross-collateralized and/or cross-defaulted Trust Mortgage
Loans that represent, as of the Closing Date, 10% or more of the Mortgage Pool
(by Cut-off Date Balance). The only Significant Obligors are the Tishman Speyer
DC Portfolio II Trust Mortgage Loan, the One Alliance Center Trust Mortgage
Loan, the Tishman Speyer DC Portfolio II Mortgaged Property and the One Alliance
Center Mortgaged Property.
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related loan documents
provide substantially to the effect that: (i) it was formed or organized solely
for the purpose of either owning and operating the Mortgaged Property or
Properties securing one or more Mortgage Loans, or owning and pledging
Defeasance Collateral in connection with the defeasance of a Defeasance Mortgage
Loan, as the case may be, (ii) it may not engage in any business unrelated to
such Mortgaged Property or Properties or such Defeasance Collateral, as the case
may be, (iii) it will not have any assets other than those related to its
interest in and operation of such Mortgaged Property or such Defeasance
Collateral, as the case may be, (iv) it may not incur indebtedness other than
incidental to its ownership and operation of the applicable Mortgaged Property
or Properties or Defeasance Collateral, as the case may be, (v) it will maintain
its own books and records and accounts separate and apart from any other Person,
(vi) it will hold itself out as a legal entity, separate and apart from any
other Person, and (vii) in the case of such an entity whose sole
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purpose is owning or operating a Mortgaged Property, it will have an independent
director or, if such entity is a partnership or a limited liability company, at
least one general partner or limited liability company member thereof, as
applicable, which shall itself be a "single purpose entity" (having as its sole
asset its interest in the Single Purpose Entity) with an independent director.
"Special Servicer" shall mean, subject to Section 6.09(d) and Section
7.01(e) (insofar as such sections contemplate multiple parties acting as Special
Servicer), LNR, in its capacity as special servicer hereunder, or any successor
special servicer appointed as herein provided.
"Special Servicer Backup Certification" shall have the meaning
assigned thereto in Section 8.15(i).
"Special Servicer Indemnification Agreement" shall mean the Special
Servicer Indemnification Agreement dated as of April 24, 2007, between the
initial Special Servicer, the Depositor, Xxxxxx Brothers, UBS Global Asset
Management (US) Inc. and the other Underwriter(s).
"Special Servicer Reportable Event" shall mean any of the following
events, conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for example,
a servicing agreement with a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, but only if the Special Servicer or any Servicing
Representative of the Special Servicer is a party to such agreement or has
entered into such agreement on behalf of the Trust (ITEM 1.01 ON FORM 8-K);
(ii) the termination of a definitive agreement that is material to the
Subject Securitization Transaction (otherwise than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the Special
Servicer or any Servicing Representative of the Special Servicer is a party
to such agreement or has entered into such agreement on behalf of the Trust
(ITEM 1.02 ON FORM 8-K);
(iii) the appointment of a receiver, fiscal agent or similar officer
for any Material Debtor in a proceeding under the U.S. Bankruptcy Code or
in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of
the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of a court
or governmental authority, but only if the subject Material Debtor is (A)
the Special Servicer, (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a Specially
Serviced Mortgage Loan (ITEM 1.03(a) ON FORM 8-K);
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB
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or (C) any Significant Obligor with respect to a Specially Serviced
Mortgage Loan (ITEM 1.03(b) ON FORM 8-K);
(v) any resignation, removal, replacement or substitution of (A) the
Special Servicer or (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB (ITEM 6.02 ON FORM 8-K);
(vi) any appointment of (A) a new Special Servicer or (B) any new
Servicing Representative of the Special Servicer that constitutes a
Servicer contemplated by Item 1108(a)(2) of Regulation AB (ITEM 6.02 ON
FORM 8-K);
(vii) any nonpublic disclosure, by the Special Servicer or any
Servicing Representative of the Special Servicer, with respect to the
Subject Securitization Transaction (other than disclosure required or
expressly permitted by this Agreement) that is required to be disclosed by
Regulation FD (17 C.F.R. Sections 243.100 through 243.103) (ITEM 7.01 ON
FORM 8-K);
(viii) any other information of importance to Certificateholders
(determined by the Special Servicer in accordance with the Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder, (B) the Special
Servicer has determined, in accordance with the Servicing Standard, is
reasonably likely to have an adverse effect on payments to the Holders of
any Class of Registered Certificates or a material adverse effect on
payments to the Holders of any Class of Non-Registered Certificates, and
(C) is directly related to a Specially Serviced Mortgage Loan (ITEM 8.01 ON
FORM 8-K);
(ix) the commencement or termination of, or any material developments
regarding, any legal proceedings pending against any Material Litigant, or
of which any property of a Material Litigant is the subject, or any threat
by a governmental authority to bring any such legal proceedings, that are
material to Certificateholders, but only if the Special Servicer is
controlling the subject litigation or if the subject Material Litigant is
(A) the Special Servicer, (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a Specially
Serviced Mortgage Loan (ITEM 2 ON FORM 10-D AND GENERAL INSTRUCTION J TO
FORM 10-K);
(x) the receipt by the Special Servicer or by any Servicing
Representative of the Special Servicer of any updated financial statements,
balance sheets, rent rolls or other financial information regarding any
Significant Obligor with respect to a Specially Serviced Mortgage Loan that
is required to be provided under Item 1112(b) of Regulation AB (ITEM 6 ON
FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K);
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the Special
Servicer to the Trustee and the Depositor in accordance with Section
8.15(b), whether the Special Servicer has become an affiliate (as defined
in Rule 405 of the Securities Act) of any of (A) the Trust, (B) an
Unaffiliated Mortgage Loan Seller, (C) the Trustee, (D) the Master
Servicer, (E) any Outside Servicer or Outside Trustee that constitutes a
Servicer contemplated by Item
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1108(a)(3) of Regulation AB, (F) any Servicing Representative of the
Special Servicer that constitutes a Servicer contemplated by Item
1108(a)(3) of Regulation AB or (G) any Significant Obligor (GENERAL
INSTRUCTION J TO FORM 10-K);
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement, transaction
or understanding contemplated by Item 1119(b) of Regulation AB between an
Unaffiliated Mortgage Loan Seller or the Trust, on the one hand, and the
Special Servicer or any Servicing Representative of the Special Servicer,
on the other hand (GENERAL INSTRUCTION J TO FORM 10-K); and
(xiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the Mortgage Loans contemplated by Item
1119(c) of Regulation AB between an Unaffiliated Mortgage Loan Seller or
the Trust, on the one hand, and the Special Servicer or any Servicing
Representative of the Special Servicer, on the other hand (GENERAL
INSTRUCTION J TO FORM 10-K).
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property, the fee designated as such in, and payable to the
Special Servicer pursuant to, Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property, 0.25% per annum.
"Specially Designated Mortgage Loan Documents" shall mean, with
respect to any Trust Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note for such Trust Mortgage Loan
(or, alternatively, if the original executed Mortgage Note has been lost, a
lost note affidavit and indemnity with a copy of such Mortgage Note);
(ii) an original or copy of the Mortgage (with or without recording
information);
(iii) the original or a copy of the policy or certificate of lender's
title insurance issued in connection with such Trust Mortgage Loan (or, if
such policy has not been issued, a "marked-up" pro forma title policy, or
an irrevocable, binding commitment to issue such title insurance policy);
(iv) an original or copy of any Ground Lease and Ground Lease
estoppels, if any, relating to such Trust Mortgage Loan; and
(v) with respect to Trust Mortgage Loans secured by hospitality
properties only, the related franchise agreement (if any) and franchisor
comfort letter (if any).
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee or by a Custodian
on its behalf, such term, with respect to any receipt or certification by the
Trustee or a Custodian on its behalf for documents described in clauses (iv) and
(v) of this definition, shall be deemed to include such documents only to the
extent the Trustee or a Custodian on its behalf has actual knowledge of their
existence; and provided, further, that
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the only Specially Designated Mortgage Loan Document with respect to each of the
Outside Serviced Trust Mortgage Loans shall be the document described in clause
(i) of this definition.
"Specially Designated Non-Trust Mortgage Loan Securities" shall mean
any Non-Trust Mortgage Loan Securities backed, either solely or together with
one or more other mortgage assets, by a Specially Designated Securitized
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"Specially Designated Securitized Non-Trust Mortgage Loan" shall mean
any Serviced Non-Trust Mortgage Loan that: (a) either is a Pari Passu Non-Trust
Mortgage Loan or has an unpaid principal balance as of the Closing Date of
$20,000,000 or more; and (b) is included in a rated commercial mortgage
securitization.
"Specially Designated Servicing Action" means:
(a) with respect to each Serviced Loan Combination or any related REO
Property, any of the particular actions specified in the first paragraph of
Section 3.02(a) of the related Co-Lender Agreement, as to which the related
Serviced Loan Combination Controlling Party has consent rights; and
(b) with respect to each other Serviced Mortgage Loan and Administered
REO Property, any of the following actions--
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an Administered REO Property) of the
ownership of properties securing such of the Specially Serviced
Mortgage Loans as come into and continue in default,
(ii) any modification, extension, amendment or waiver of a monetary
term (including the timing of payments, but excluding the
waiver of Default Charges) or any material non-monetary term
(including any material term relating to insurance) of a
Specially Serviced Mortgage Loan,
(iii) any modification, extension, amendment or waiver of a material
monetary term (excluding the waiver of Default Charges) or any
material non-monetary term (including any material term
relating to insurance) of a Performing Serviced Mortgage Loan,
(iv) any proposed sale of an Administered REO Property (other than
in connection with the termination of the Trust Fund) for less
than the Purchase Price,
(v) any acceptance of a discounted payoff with respect to a
Specially Serviced Mortgage Loan,
(vi) any determination to bring a Mortgaged Property securing a
Specially Serviced Mortgage Loan or an Administered REO
Property into compliance with applicable environmental laws or
to otherwise address Hazardous Materials located at a Mortgaged
Property securing a Specially Serviced Mortgage Loan or an
Administered REO Property,
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(vii) any release of collateral for any Serviced Mortgage Loan
identified on Schedule XIII hereto or any Specially Serviced
Mortgage Loan, other than any release of collateral that (A) is
required by the terms of such Mortgage Loan (with no material
discretion by the mortgagee), (B) occurs upon satisfaction of
such Mortgage Loan, or (C) occurs in connection with a
defeasance,
(viii) any release of a parcel of land with respect to a Performing
Serviced Mortgage Loan (other than parcels that were not given
value in the calculation of loan-to-value ratio in connection
with the underwriting of such Mortgage Loan), provided that in
any event this clause (viii) shall not apply to any release of
collateral that (A) is required by the terms of such Mortgage
Loan (with no material discretion by the mortgagee), (B) occurs
upon satisfaction of such Mortgage Loan, (C) occurs in
connection with a defeasance, or (D) may be approved by the
Master Servicer pursuant to Section 3.20(c),
(ix) any acceptance of substitute or additional collateral for a
Serviced Mortgage Loan, other than any acceptance of substitute
or additional collateral that (A) is required by the terms of
such Mortgage Loan (with no material discretion by the
mortgagee), (B) occurs in connection with a defeasance, or (C)
may be approved by the Master Servicer pursuant to Section
3.20(c),
(x) any acceptance of a change in the property management company
or, if applicable, the hotel franchise for any Mortgaged
Property, other than as required by the terms of the related
Serviced Mortgage Loan (with no material discretion by the
mortgagee), provided that, in the case of a change in the
property management company, this clause (x) has effect only if
the unpaid principal balance of the related Serviced Mortgage
Loan is greater than $5,000,000,
(xi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to any Serviced Mortgage Loan,
(xii) any determination by the Special Servicer not to maintain or
cause a borrower to maintain for a Mortgaged Property all-risk
casualty or other insurance that provides coverage for acts of
terrorism, despite the fact that such insurance may be required
under the terms of the related Mortgage Loan, and
(xiii) any acceptance of an assumption agreement releasing a borrower
from liability under any Serviced Mortgage Loan;
provided that, as used in clauses (c)(vii) through (c)(x) above, the term
"material discretion" shall mean that the relevant decision is in the discretion
of the mortgagee, and such decision is not based upon the satisfaction of
specified objective conditions, the satisfactory delivery of certain factual
evidence or opinions or the satisfaction of any other specified objective
criteria that is set forth in the related Mortgage Loan documents.
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"Specially Serviced Mortgage Loan" shall mean, subject to the last
paragraph of this definition, any Serviced Mortgage Loan as to which any of the
following events has occurred:
(a) the related Mortgagor (or any related guarantor) has failed to
make when due any Monthly Payment (including a Balloon Payment), which
failure continues, or which failure the Master Servicer or (with the
consent of the Controlling Class Representative) the Special Servicer
determines, in each case in accordance with the Servicing Standard, will
continue, unremedied (without regard to any grace period) by the related
Mortgagor, any related guarantor or otherwise (including, in the case of a
Serviced Combination Trust Mortgage Loan, by a related Serviced Non-Trust
Mortgage Loan Noteholder exercising any cure rights under the related
Co-Lender Agreement) (i) except in the case of a Balloon Mortgage Loan
delinquent in respect of its Balloon Payment, for 60 days beyond the date
on which the subject payment was due, or (ii) solely in the case of a
delinquent Balloon Payment, (A) for one (1) Business Day beyond the date on
which the subject Balloon Payment was due (unless clause (B) below applies)
or (B) in the case of a Balloon Mortgage Loan as to which the related
Mortgagor shall have delivered a refinancing commitment acceptable to the
Special Servicer prior to the date on which the subject Balloon Payment was
due, for 30 days beyond the date on which the subject Balloon Payment was
due (or for such shorter period ending on the date on which it is
determined that the refinancing could not reasonably be expected to occur);
or
(b) there shall have occurred a default (other than as described in
clause (a) above and other than an Acceptable Insurance Default) that the
Master Servicer or the Special Servicer has determined, in each case in
accordance with the Servicing Standard, (i) materially impairs the value of
the related Mortgaged Property as security for such Serviced Mortgage Loan
or otherwise materially adversely affects the interests of
Certificateholders (or, in the case of a Serviced Non-Trust Mortgage Loan,
the interests of the related Serviced Non-Trust Mortgage Loan Noteholder)
(it being acknowledged and agreed that any default requiring a Servicing
Advance shall be deemed to materially and adversely affect the interests of
Certificateholders or, in the case of a Serviced Non-Trust Mortgage Loan,
the interests of the related Serviced Non-Trust Mortgage Loan Noteholder),
and (ii) continues unremedied by the related Mortgagor, any related
guarantor or otherwise (including, in the case of a Serviced Combination
Trust Mortgage Loan, by a related Serviced Non-Trust Mortgage Loan
Noteholder exercising any cure rights under the related Co-Lender
Agreement) for either (A) one Business Day (but only if, pursuant to the
related loan documents, the subject default gives rise to immediate
acceleration without application of a cure period under such Serviced
Mortgage Loan) or (B) otherwise, the greater of (1) the applicable grace
period under the terms of such Serviced Mortgage Loan and (2) 30 days; or
(c) the Master Servicer or, with the consent of the Controlling Class
Representative, the Special Servicer shall have determined, in accordance
with the Servicing Standard, that (i) a default in the making of a Monthly
Payment on such Serviced Mortgage Loan, including a Balloon Payment, is
likely to occur and is likely to remain unremedied (without regard to any
grace period) by the related Mortgagor, any related guarantor or otherwise
(including, in the case of a Serviced Combination Trust Mortgage Loan, by a
related Serviced Non-Trust Mortgage Loan Noteholder exercising any cure
rights under the related Co-Lender Agreement) for at least the applicable
period contemplated by clause (a) of this definition or (ii) a default
(other than as described in clause (a) of this definition and other than an
Acceptable Insurance Default) is likely
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to occur under such Mortgage Loan that will materially impair the value of
the related Mortgaged Property as security for such Serviced Mortgage Loan
or otherwise materially adversely affect the interests of
Certificateholders (or, in the case of a Serviced Non-Trust Mortgage Loan,
the related Serviced Non-Trust Mortgage Loan Noteholder) and such default
is likely to remain unremedied for at least the applicable period
contemplated by clause (b) of this definition; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor and such decree or
order shall have remained in force and not dismissed for a period of 60
days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all of
its property; or
(f) the related Mortgagor shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(g) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property;
provided, however, that a Serviced Mortgage Loan will cease to be a Specially
Serviced Mortgage Loan when a Liquidation Event has occurred with respect to
such Serviced Mortgage Loan, when the related Mortgaged Property has become an
REO Property or, so long as at such time no circumstance identified in clauses
(a) through (g) above exists that would cause such Serviced Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a) of this
definition, the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Mortgage Loan (as such
terms may be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a modification,
extension, waiver or amendment granted or agreed to by the Master Servicer
or the Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clause (b) of this
definition, the default is cured in the good faith, reasonable judgment of
the Special Servicer;
(y) with respect to the circumstances described in clauses (c), (d),
(e) and (f) of this definition, such circumstances cease to exist in the
good faith, reasonable judgment of the Special Servicer, but, with respect
to any bankruptcy or
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insolvency proceedings described in clauses (d), (e) and (f), no later than
the entry of an order or decree dismissing such proceeding;
(z) with respect to the circumstances described in clause (g) of this
definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination as to whether a Servicing Transfer Event has occurred giving rise
to a Serviced Mortgage Loan's becoming a Specially Serviced Mortgage Loan.
Except as provided below in this sentence, if any Mortgage Loan that
is part of a Serviced Loan Combination becomes a Specially Serviced Mortgage
Loan, then the other Mortgage Loan or each of the other Mortgage Loans, as the
case may be, in such Loan Combination shall also become a Specially Serviced
Mortgage Loan; provided that if, subject to the terms, conditions and
limitations of the related Co-Lender Agreement, a Serviced Non-Trust Mortgage
Loan Noteholder prevents the occurrence of a Servicing Transfer Event with
respect to the related Serviced Combination Trust Mortgage Loan through the
exercise of any cure rights granted under the related Co-Lender Agreement with
respect to such Serviced Combination Trust Mortgage Loan, then the existence of
such Servicing Transfer Event with respect to the related Serviced Non-Trust
Mortgage Loan (because any such cure rights do not include the cure of defaults
under the related Serviced Non-Trust Mortgage Loan) will not, in and of itself,
result in any Mortgage Loan that is part of the subject Serviced Loan
Combination becoming a Specially Serviced Mortgage Loan (provided that a
separate Servicing Transfer Event may occur with respect to the subject Serviced
Loan Combination causing the Mortgage Loans comprising such Loan Combination to
become Specially Serviced Mortgage Loans).
None of the Outside Serviced Mortgage Loans shall constitute a
Specially Serviced Mortgage Loan hereunder.
"Specially Serviced Trust Mortgage Loan" shall mean any Trust Mortgage
Loan that is a Specially Serviced Mortgage Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 10.01(c).
"State Street Building Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"State Street Building Collection Period" shall mean, with respect to
any Distribution Date or Trust Master Servicer Remittance Date, the period
commencing on the day immediately following the State Street Building
Determination Date in the calendar month preceding the month in which such
Distribution Date or Trust Master Servicer Remittance Date, as the case may be,
occurs (or, in the case of each of the initial Distribution Date and the initial
Trust Master Servicer Remittance Date, commencing immediately following the
Cut-off Date) and ending on and including the State Street Building
Determination Date in the calendar month in which such Distribution Date or
Trust Master Servicer Remittance Date, as the case may be, occurs.
"State Street Building Controlling Party" shall mean the Loan
Combination Controlling Party with respect to the State Street Building Loan
Combination.
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"State Street Building Determination Date" shall mean the "State
Street Building Master Servicer Remittance Date", as defined in the State Street
Building Servicing Agreement.
"State Street Building Directing Lender" shall mean the Loan
Combination Directing Lender with respect to the State Street Building Loan
Combination.
"State Street Building Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"State Street Building Master Servicer" shall mean the master servicer
under the State Street Building Servicing Agreement.
"State Street Building Mortgage Loan" shall mean the State Street
Building Trust Mortgage Loan or any State Street Building Non-Trust Mortgage
Loan, as applicable.
"State Street Building Mortgaged Property" shall have the meaning
assigned thereto in the Preliminary Statement.
"State Street Building Non-Trust Mortgage Loan Noteholder" shall mean
the holder (or, if applicable, the collective holders) of the Mortgage Note for
a State Street Building Non-Trust Mortgage Loan.
"State Street Building Non-Trust Mortgage Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"State Street Building Note A-1 Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"State Street Building Note A-1 Non-Trust Mortgage Loan Noteholder"
shall mean the holder of the Mortgage Note for the State Street Building Note
A-1 Non-Trust Mortgage Loan.
"State Street Building Note A-2 Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"State Street Building Note A-2 Non-Trust Mortgage Loan Noteholder"
shall mean the holder of the Mortgage Note for the State Street Building Note
A-2 Non-Trust Mortgage Loan.
"State Street Building Noteholders" shall mean the holder of the
Mortgage Note for the State Street Building Trust Mortgage Loan, together with
the State Street Building Non-Trust Mortgage Loan Noteholders.
"State Street Building Servicer" shall mean the State Street Building
Master Servicer or the State Street Building Special Servicer, as applicable.
"State Street Building Servicing Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"State Street Building Special Servicer" shall mean the special
servicer under the State Street Building Servicing Agreement.
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"State Street Building Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"State Street Building Trustee" shall mean the trustee, if any, under
the State Street Building Servicing Agreement.
"State Street Building Underlying Collection Period" shall mean, with
respect to any Distribution Date or Trust Master Servicer Remittance Date, the
"Loan Combination Collection Period" (within the meaning of the initial State
Street Building Servicing Agreement) that ends in the calendar month in which
such Distribution Date or Trust Master Servicer Remittance Date, as the case may
be, occurs.
"Stated Maturity Date" shall mean, with respect to any Mortgage Loan,
the Due Date specified in the related Mortgage Note (as in effect on the Closing
Date) on which the last payment of principal is due and payable under the terms
of such Mortgage Note (as in effect on the Closing Date), without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the Special
Servicer (or the Master Servicer, if applicable) pursuant to Section 3.20 (or,
in the case of an Outside Serviced Trust Mortgage Loan, by the applicable
Outside Servicer pursuant to the related Outside Servicing Agreement) and, in
the case of an ARD Mortgage Loan, without regard to its Anticipated Repayment
Date.
"Stated Principal Balance" shall mean, as of any date of
determination: (a) with respect to any Trust Mortgage Loan and any successor REO
Trust Mortgage Loan with respect thereto, the Cut-off Date Balance of such Trust
Mortgage Loan, as permanently reduced on each Distribution Date (to not less
than zero) by (i) that portion, if any, of the Principal Distribution Amount for
such Distribution Date allocable to such Trust Mortgage Loan (or any such
successor REO Trust Mortgage Loan with respect thereto), without giving effect
to any adjustments pursuant to Section 1.03 in connection with the calculation
of the Adjusted Principal Distribution Amount, and (ii) the principal portion of
any Realized Loss incurred in respect of such Trust Mortgage Loan (or any such
successor REO Trust Mortgage Loan with respect thereto) during the applicable
related Collection Period (or, in the case of a forgiveness of principal, a
Permitted Purchase under the related Outside Servicing Agreement and/or the
related Co-Lender Agreement for less than the related Purchase Price or a Final
Recovery Determination with respect to an Outside Serviced Trust Mortgage Loan
or any successor REO Trust Mortgage Loan with respect thereto, during the
related Underlying Collection Period) (provided that, if some or all of the
principal portion of such Realized Loss constitutes an Advance that previously
reduced the Stated Principal Balance of such Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto by operation of clause
(i) above, then the amount of that Advance included in the principal portion of
such Realized Loss shall not further reduce the Stated Principal Balance of such
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto under this clause (ii)); and (b) with respect to any Serviced Non-Trust
Mortgage Loan and any successor REO Mortgage Loan with respect thereto, the
Cut-off Date Balance of such Non-Trust Mortgage Loan, as permanently reduced on
each related Master Servicer Remittance Date (to not less than zero) by (i) any
principal amounts in respect of such Non-Trust Mortgage Loan (or any such
successor REO Mortgage Loan with respect thereto) distributed to the related
Non-Trust Mortgage Loan Noteholder on such Master Servicer Remittance Date, and
(ii) the principal portion of any Realized Loss incurred in respect of such
Non-Trust Mortgage Loan (or any such successor REO Mortgage Loan with respect
thereto) in
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connection with a Liquidation Event or the forgiveness of principal during the
related Collection Period. Notwithstanding the foregoing, if a Liquidation Event
occurs in respect of any Mortgage Loan or any related REO Property, then the
"Stated Principal Balance" of such Mortgage Loan or of any successor REO
Mortgage Loan with respect thereto, as the case may be, shall be zero commencing
as of the first Distribution Date (or, in the case of a Serviced Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect thereto, the first
related Master Servicer Remittance Date) following the end of the applicable
Collection Period in which such Liquidation Event occurred; provided that, in
the case of an Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto, if the subject Liquidation Event is a Final
Recovery Determination made by the applicable Outside Servicer with respect to,
or a Permitted Purchase under the related Outside Servicing Agreement and/or the
related Co-Lender Agreement of, such Trust Mortgage Loan or REO Trust Mortgage
Loan, as the case may be, then references to "Collection Period" in this
sentence shall be deemed to mean the related Underlying Collection Period.
"Subject Securitization Transaction" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"Subordinate Certificate" shall mean any Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class S or Class T Certificate or any
Residual Interest Certificate.
"Subordinate Non-Trust Mortgage Loan Noteholder" shall mean the holder
of the Mortgage Note for a Subordinate Non-Trust Mortgage Loan.
"Subordinate Non-Trust Mortgage Loans" shall mean the Serviced
Subordinate Non-Trust Mortgage Loans.
"Subsequent Exchange Act Reports" shall have the meaning assigned
thereto in Section 8.15(a).
"Sub-Servicer" shall mean any Person engaged by the Master Servicer or
the Special Servicer to perform servicing functions with respect to one or more
Mortgage Loans or REO Properties.
"Sub-Servicing Agreement" shall mean the written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Serviced Mortgage
Loans as provided in Section 3.22.
"Sub-Servicing Function Participant" shall mean any Sub-Servicer,
sub-contractor, vendor, agent or other Person acting on behalf of a party
hereto, which Sub-Servicer, sub-contractor, vendor, agent or other Person is a
"party participating in the servicing function" (within the meaning of the
instructions to Item 1122 of Regulation AB) as regards the Trust Fund.
"Successful Bidder" shall have the meaning assigned thereto in Section
7.01(c).
"Supplemental Report" shall mean have the meaning assigned thereto in
Section 3.12(d).
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
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"Tax Matters Person" shall mean, with respect to any REMIC Pool, the
Person designated as the "tax matters person" of such REMIC Pool in the manner
provided under Treasury regulations section 1.860F-4(d) and Treasury regulations
section 301.6231(a)(7)-1, which Person shall be the Plurality Residual Interest
Certificateholder in respect of the related Class of Residual Interest
Certificates.
"Tax Returns" shall mean the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC Pool due to its classification as a REMIC
under the REMIC Provisions, and the federal income tax return to be filed on
behalf of the Grantor Trust (if created hereunder taking into account Section
2.05(b)) due to its classification as a grantor trust under the Grantor Trust
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the IRS
under any applicable provisions of federal tax law or any other governmental
taxing authority under applicable state and local tax law.
"Tishman Speyer DC Portfolio II Mortgaged Property" shall mean,
collectively, the portfolio of real properties identified on the Trust Mortgage
Loan Schedule as the Tishman Speyer DC Portfolio II.
"Tishman Speyer DC Portfolio II Trust Mortgage Loan" shall mean the
Trust Mortgage Loan that is identified on the Trust Mortgage Loan Schedule by
loan number 1 and is secured by one or more mortgages, deeds of trust or similar
instruments encumbering the Tishman Speyer DC Portfolio II Mortgaged Property.
"Total Principal Reinstatement Amount" shall mean, with respect to any
Distribution Date, an amount (to be calculated by the Trustee immediately
following, and after taking into account, all distributions to be made with
respect to the Certificates on such Distribution Date) equal to the lesser of:
(1) the amount, if any, by which (a) the aggregate Stated Principal Balance of
the Mortgage Pool that will be outstanding immediately following the subject
Distribution Date, exceeds (b) the aggregate of the Class Principal Balances of
all the Classes of Principal Balance Certificates, after taking into account the
distributions made with respect to the Certificates on the subject Distribution
Date, but prior to any adjustments to the Class Principal Balances of the
respective Classes of Principal Balance Certificates pursuant to Section 4.04 or
Section 4.05; and (2) the amount, if any, by which (a) the aggregate Loss
Reimbursement Amount in respect of all the Classes of Principal Balance
Certificates for the subject Distribution Date, exceeds (b) the total portion of
such aggregate Loss Reimbursement Amount reimbursed in respect of all of the
Classes of Principal Balance Certificates on the subject Distribution Date, if
any, pursuant to Section 4.01(a) and/or Section 4.01(b).
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned
thereto in Section 5.02(d)(i)(B).
"Transferee" shall mean any Person who is acquiring, by Transfer, any
Ownership Interest in a Certificate.
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"Transferor" shall mean any Person who is disposing of, by Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the LB-UBS Commercial Mortgage Trust 2007-C2, which
is the common law trust created hereunder.
"Trust Collection Period" shall mean, with respect to any Distribution
Date or Trust Master Servicer Remittance Date, the period commencing on the day
immediately following the Trust Determination Date in the calendar month
preceding the month in which such Distribution Date or Trust Master Servicer
Remittance Date, as the case may be, occurs (or, in the case of each of the
initial Distribution Date and the initial Trust Master Servicer Remittance Date,
commencing immediately following the Cut-off Date) and ending on and including
the Trust Determination Date in the calendar month in which such Distribution
Date or Trust Master Servicer Remittance Date, as the case may be, occurs.
"Trust Determination Date" shall mean the 11th calendar day of each
month (or, if such 11th day is not a Business Day, the Business Day immediately
following), commencing in May 2007.
"Trust Fund" shall mean, collectively, all of the assets of the REMIC
Pools, the Grantor Trust (if created hereunder taking into account Section
2.05(b)) and the Loss of Value Reserve Fund.
"Trust Master Servicer Remittance Date" shall mean the date each
month, commencing in May 2007, on which, among other things, the Master Servicer
is required to (i) make P&I Advances and (ii) transfer the Master Servicer
Remittance Amount and any Excess Liquidation Proceeds to the Trustee, which date
shall be the Business Day immediately preceding the Distribution Date in such
month.
"Trust Mortgage Loan" shall mean each of the mortgage loans listed on
the Trust Mortgage Loan Schedule and from time to time held in the Trust Fund.
As used herein, the term "Trust Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File or otherwise held on behalf of the Trust. Notwithstanding the foregoing, if
any of the mortgage loans listed on the Trust Mortgage Loan Schedule are, in
accordance with their terms or pursuant to any modification, waiver or amendment
agreed to in accordance with Section 3.20, severed or split into two or more
mortgage loans that are to remain part of the Trust Fund, then such two or more
mortgage loans shall constitute separate "Trust Mortgage Loans" for all purposes
hereof, except that such mortgage loans will collectively constitute the "Trust
Mortgage Loan" that relates to the applicable REMIC I Regular Interest and/or
any applicable Loan REMIC Regular Interest.
"Trust Mortgage Loan Schedule" shall mean the list of Trust Mortgage
Loans transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Trust Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and name
of the related Mortgaged Property;
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(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated Maturity
Date;
(vii) in the case of a Balloon Trust Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate and (B) if such Trust Mortgage
Loan is an Outside Serviced Mortgage Loan, the related Outside Servicing
Fee Rate;
(x) whether such Trust Mortgage Loan is secured by a Ground Lease;
(xi) the related Mortgage Loan Seller;
(xii) whether such Trust Mortgage Loan is a Defeasance Mortgage Loan;
(xiii) whether such Trust Mortgage Loan is an ARD Mortgage Loan and,
if so, the Anticipated Repayment Date and Additional Interest Rate;
(xiv) whether such Trust Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it belongs; and
(xv) the applicable Loan Group to which such Mortgage Loan belongs.
"Trust Related Litigation" shall have the meaning assigned thereto in
Section 3.29(a).
"Trustee" shall mean LaSalle, in its capacity as trustee hereunder, or
any successor trustee appointed as herein provided.
"Trustee Account" shall have the meaning assigned thereto in Section
3.06(a).
"Trustee Appointee" shall mean any Fiscal Agent, Authenticating Agent,
Certificate Registrar, Tax Administrator, Custodian, co-trustee or separate
trustee appointed or designated by the Trustee hereunder.
"Trustee Backup Certification" shall have the meaning assigned thereto
in Section 8.15(g).
"Trustee Fee" shall mean, with respect to each Distribution Date, an
amount equal to one-twelfth of the product of (i) the annual Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately prior to such Distribution Date.
"Trustee Fee Rate" shall mean 0.0005% per annum.
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"Trustee Indemnification Agreement" shall mean the Trustee
Indemnification Agreement dated as of April 24, 2007, between the initial
Trustee, the Depositor, Xxxxxx Brothers, UBS Global Asset Management (US) Inc.
and any other Underwriter(s).
"Trustee Liability" shall have the meaning assigned thereto in Section
8.05(b).
"Trustee Reportable Event" shall mean any of the following events,
conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for example,
a servicing agreement with a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, but only if the Trustee, any Servicing Representative or
other agent of the Trustee or any Trustee Appointee is a party to such
agreement or has entered into such agreement on behalf of the Trust (ITEM
1.01 ON FORM 8-K);
(ii) the termination of a definitive agreement that is material to the
Subject Securitization Transaction (otherwise than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the
Trustee, any Servicing Representative or other agent of the Trustee or any
Trustee Appointee is a party to such agreement or has entered into such
agreement on behalf of the Trust (ITEM 1.02 ON FORM 8-K);
(iii) the appointment of a receiver, fiscal agent or similar officer
for any Material Debtor in a proceeding under the U.S. Bankruptcy Code or
in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of
the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of a court
or governmental authority, but only if the subject Material Debtor is (A)
the Trustee, (B) any Servicing Representative of the Trustee that
constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation AB,
(C) any Trustee Appointee, (D) any Enhancement/Support Provider that is not
an Affiliate of the Depositor or (E) the Trust (ITEM 1.03(a) ON FORM 8-K);
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Trustee, (B) any Servicing Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust (ITEM
1.03(b) ON FORM 8-K);
(v) any event that has occurred hereunder that would materially alter
the payment priority or distribution of cash flows regarding the
Certificates (ITEM 2.04 ON FORM 8-K);
(vi) any material modification to the rights of the Holders of any
Class of Certificates, including by reason of a modification to this
Agreement, a Mortgage Loan Purchase Agreement or any other constituent
instrument (ITEM 3.03(a) ON FORM 8-K);
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(vii) any material limitation or qualification of the rights evidenced
by any Class of Certificates by reason of the modification of any other
Class of Certificates (ITEM 3.03(b) ON FORM 8-K);
(viii) any amendment to this Agreement pursuant to Section 11.01 (ITEM
5.03 ON FORM 8-K);
(ix) any resignation, removal, replacement or substitution of (A) the
Trustee, the Master Servicer or the Special Servicer, (B) any Outside
Servicer that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB or (C) any Servicing Representative of the Trustee that
constitutes a Servicer contemplated by Item 1108(a)(2) of Regulation AB
(ITEM 6.02 ON FORM 8-K);
(x) any appointment of (A) a new Trustee, new Master Servicer or new
Special Servicer, (B) any Outside Servicer that constitutes a Servicer
contemplated by Item 1108(a)(2) of Regulation AB or (C) any new Servicing
Representative of the Trustee that constitutes a Servicer contemplated by
Item 1108(a)(2) of Regulation AB (ITEM 6.02 ON FORM 8-K);
(xi) any termination of a material enhancement or support specified in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
that was previously applicable regarding one or more Classes of the
Certificates, which termination has occurred other than by expiration of
the contract on its stated termination date or as a result of all parties
completing their obligations under such agreement (ITEM 6.03(a) ON FORM
8-K);
(xii) any addition of a material enhancement or support specified in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
with respect to one or more Classes of the Certificates (ITEM 6.03(b) ON
FORM 8-K);
(xiii) any material amendment or modification of a material
enhancement or support specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB with respect to one or more
Classes of the Certificates (ITEM 6.03(c) ON FORM 8-K);
(xiv) any material failure on the part of the Trustee to make on the
applicable Distribution Date any required monthly distributions to the
Holders of any Class of Certificates (ITEM 6.04 ON FORM 8-K);
(xv) any nonpublic disclosure, by the Trustee, any Servicing
Representative of the Trustee or any Trustee Appointee, with respect to the
Subject Securitization Transaction (other than disclosure required or
expressly permitted pursuant to this Agreement) that is required to be
disclosed by Regulation FD (17 C.F.R. Sections 243.100 through 243.103)
(ITEM 7.01 ON FORM 8-K);
(xvi) any other information of importance to Certificateholders that
is not otherwise required to be included in the Distribution Date Statement
or any other report to be delivered or otherwise made available to
Certificateholders hereunder and that is directly related to the
obligations of the Trustee hereunder (ITEM 8.01 ON FORM 8-K);
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(xvii) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Trustee is controlling the subject litigation or if the subject Material
Litigant is (A) the Trustee, (B) any Servicing Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust (ITEM 2
ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K);
(xviii) any material default in the payment of principal and interest
on, or any other material default with respect to, any Class of
Certificates (ITEM 4 ON FORM 10-D);
(xix) the submission of any matter to a vote by Certificateholders
(ITEM 5 ON FORM 10-D);
(xx) the receipt by the Trustee or by any Servicing Representative or
other agent of the Trustee of any updated information regarding an
Enhancement/Support Provider with respect to any Class of Certificates that
is required pursuant to Item 1114(b)(2) or Item 1115(b) of Regulation AB
(ITEM 7 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K);
(xxi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in an Exchange Act Report in accordance
with this Agreement, whether the Trustee has become an affiliate (as
defined in Rule 405 of the Securities Act) of any of (A) the Trust, (B) an
Unaffiliated Mortgage Loan Seller, (C) the Master Servicer, (D) the Special
Servicer, (E) any Outside Servicer that constitutes a Servicer contemplated
by Item 1108(a)(3) of Regulation AB, (F) any Servicing Representative of
the Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (G) any Trustee Appointee or (H) any Significant Obligor
(GENERAL INSTRUCTION J TO FORM 10-K);
(xxii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement, transaction
or understanding contemplated by Item 1119(b) of Regulation AB between an
Unaffiliated Mortgage Loan Seller or the Trust, on the one hand, and the
Trustee, any Trustee Appointee (but only if such Trustee Appointee is a
material party to the Subject Securitization Transaction contemplated by
Item 1100(d)(1) of Regulation AB) or any Servicing Representative (but only
if such Servicing Representative is a Servicer contemplated by Item
1108(a)(3) of Regulation AB or a material party related to the Subject
Securitization Transaction contemplated by Item 1100(d)(1) of Regulation
AB) of the Trustee, on the other hand (GENERAL INSTRUCTION J TO FORM 10-K);
and
(xxiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the Mortgage Loans contemplated by Item
1119(c) of Regulation AB between an Unaffiliated Mortgage Loan Seller or
the Trust, on the one hand, and any Trustee Appointee (but only if such
Trustee Appointee is a material party to the Subject Securitization
Transaction contemplated by Item 1100(d)(1) of Regulation AB) or any
Servicing Representative (but only if such Servicing Representative is a
Servicer contemplated by Item 1108(a)(3) of Regulation AB or a material
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party related to the Subject Securitization Transaction contemplated by
Item 1100(d)(1) of Regulation AB) of the Trustee, on the other hand
(GENERAL INSTRUCTION J TO FORM 10-K).
"UBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of April 24, 2007, between the
UBS Mortgage Loan Seller and the Depositor.
"UBS Mortgage Loan Seller" shall mean UBS Real Estate Investments Inc.
or its successor in interest.
"UBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the UBS Mortgage Loan Seller to the Depositor, pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
(if required by the UCC) and filed pursuant to the UCC.
"UMLS/Depositor Mortgage Loan Purchase Agreement" shall mean a
Mortgage Loan Purchase Agreement between the Depositor and an Unaffiliated
Mortgage Loan Seller.
"Unaffiliated Mortgage Loan Seller" shall mean any Person (other than
LBHI, LUBS or any other Affiliate of the Depositor) that sells one or more Trust
Mortgage Loans or portions thereof directly to the Depositor for inclusion in
the Subject Securitization. The Unaffiliated Mortgage Loan Sellers are the UBS
Mortgage Loan Seller, the Countrywide Mortgage Loan Seller and the Greenwich
Mortgage Loan Seller.
"Uncertificated Accrued Interest" shall mean the interest accrued from
time to time with respect to any Loan REMIC Regular Interest, REMIC I Regular
Interest or REMIC II Regular Interest, the amount of which interest shall equal:
(a) in the case of any Loan REMIC Regular Interest for any Interest Accrual
Period, one-twelfth of the product of (i) the annual Loan REMIC Remittance Rate
applicable to such Loan REMIC Regular Interest for such Interest Accrual Period,
multiplied by (ii) the Uncertificated Principal Balance of such Loan REMIC
Regular Interest outstanding immediately prior to the related Distribution Date;
(b) in the case of any REMIC I Regular Interest for any Interest Accrual Period,
one-twelfth of the product of (i) the annual REMIC I Remittance Rate applicable
to such REMIC I Regular Interest for such Interest Accrual Period, multiplied by
(ii) the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date; (c) in the case
of any REMIC II Regular Interest for any Interest Accrual Period, one-twelfth of
the product of (i) the annual REMIC II Remittance Rate applicable to such REMIC
II Regular Interest for such Interest Accrual Period, multiplied by (ii) the
Uncertificated Principal Balance of such REMIC II Regular Interest outstanding
immediately prior to the related Distribution Date. Each Loan REMIC Regular
Interest (if any), REMIC I Regular Interest and REMIC II Regular Interest shall
accrue interest on a 30/360 Basis.
"Uncertificated Distributable Interest" shall mean: (a) with respect
to any Loan REMIC Regular Interest for any Distribution Date, an amount of
interest equal to the amount of Uncertificated
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Accrued Interest in respect of the subject Loan REMIC Regular Interest for the
related Interest Accrual Period, reduced (to not less than zero) by any portion
of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date
attributable to the corresponding Early Defeasance Trust Mortgage Loan; (b) with
respect to any REMIC I Regular Interest for any Distribution Date, an amount of
interest equal to the amount of Uncertificated Accrued Interest in respect of
the subject REMIC I Regular Interest for the related Interest Accrual Period,
reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the amount of Uncertificated Accrued
Interest in respect of the subject REMIC I Regular Interest for the related
Interest Accrual Period, and the denominator of which is the aggregate amount of
Uncertificated Accrued Interest in respect of all the REMIC I Regular Interests
for the related Interest Accrual Period; and (c) with respect to any REMIC II
Regular Interest for any Distribution Date, subject to Section 4.05(d), an
amount of interest equal to the amount of Uncertificated Accrued Interest in
respect of the subject REMIC II Regular Interest for the related Interest
Accrual Period, reduced (to not less than zero) by the product of (i) any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date, multiplied
by (ii) a fraction, the numerator of which is the amount of Uncertificated
Accrued Interest in respect of the subject REMIC II Regular Interest for the
related Interest Accrual Period, and the denominator of which is the aggregate
amount of Uncertificated Accrued Interest in respect of all the REMIC II Regular
Interests for the related Interest Accrual Period.
"Uncertificated Principal Balance" shall mean the principal balance of
any Loan REMIC Regular Interest, REMIC I Regular Interest or REMIC II Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Principal Balance of each Loan REMIC Regular Interest (if
any) and each REMIC I Regular Interest shall equal the Cut-off Date Balance of
the corresponding Trust Mortgage Loan. As of the Closing Date, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall equal
the amount set forth in the Preliminary Statement hereto as its initial
"Uncertificated Principal Balance." On each Distribution Date, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 4.01(l), and shall be further reduced
(subject to Section 4.05) on such Distribution Date by all Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(b). On each Distribution Date, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall be
reduced by all distributions of principal deemed to have been made in respect of
such REMIC I Regular Interest on such Distribution Date pursuant to Section
4.01(m), and shall be further reduced on such Distribution Date by all Realized
Losses and Additional Trust Fund Expenses deemed to have been allocated thereto
on such Distribution Date pursuant to Section 4.04(c). On each Distribution
Date, the Uncertificated Principal Balance of each Loan REMIC Regular Interest
(if any) shall be reduced by all distributions of principal deemed to have been
made in respect of such Loan REMIC Regular Interest on such Distribution Date
pursuant to Section 4.01(n), and shall be further reduced on such Distribution
Date by all Realized Losses and Additional Trust Fund Expenses deemed to have
been allocated thereto on such Distribution Date pursuant to Section 4.04(d).
Notwithstanding the foregoing, on any given Distribution Date, the
Uncertificated Principal Balance of any REMIC II Regular Interest shall be
subject to increase (and, when appropriate, shall be increased), as and to the
extent provided in Section 4.05(c).
"Underlying Collection Period" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, the applicable "Collection Period" under the related Outside
Servicing Agreement or any other applicable period under
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the related Outside Servicing Agreement that is comparable to a Collection
Period hereunder. The Underlying Collection Periods consist of the Extendicare
Portfolio Underlying Collection Period and the State Street Building Underlying
Collection Period.
"Underwriters" shall mean Xxxxxx Brothers, UBS Global Asset Management
(US) Inc., Countrywide Securities Corporation and their respective successors in
interest.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust (or to the extent provided in the Treasury regulations, if the trust was
in existence on August 20, 1996 and elected to be treated as a United States
person), all within the meaning of Section 7701(a) (30) of the Code.
"Voting Rights" shall mean the portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 99% of the Voting Rights shall be allocated among the
Holders of the various Classes of the Principal Balance Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
1% of the Voting Rights shall be allocated among the Holders of the various
Classes of the Interest-Only Certificates in proportion to the respective Class
Notional Amounts of their Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in standard
proportion to the Percentage Interests evidenced by their respective
Certificates. No Voting Rights shall be allocated to the Certificates that are
not Regular Interest Certificates.
"Wachovia" means Wachovia Bank, National Association or its successor
in interest.
"Weighted Average REMIC I Remittance Rate" shall mean, with respect to
any Interest Accrual Period, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the respective
REMIC I Remittance Rates in effect for the REMIC I Regular Interests for such
Interest Accrual Period, weighted on the basis of the respective Uncertificated
Principal Balances of such REMIC I Regular Interests outstanding immediately
prior to the related Distribution Date.
"WHFIT" shall mean a "Widely Held Fixed Investment Trust" as that term
is defined in Treasury Regulations section 1.671-5(b)(22) or successor
provisions.
"WHFIT Regulations" shall mean Treasury Regulations section 1.671-5,
as amended.
"Workout Fee" shall mean the fee designated as such in, and payable to
the Special Servicer with respect to certain collections on each Corrected
Mortgage Loan pursuant to, Section 3.11(c).
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"Workout Fee Rate" shall mean, with respect to each Corrected Mortgage
Loan as to which a Workout Fee is payable, 1.0%.
"Yield Maintenance Charge" shall mean the amount paid or payable, as
the context requires, as the result of a Principal Prepayment on, or other early
collection of principal of, a Mortgage Loan, which amount is not otherwise due
thereon in respect of principal or interest and has been calculated (based on
scheduled payments of interest and/or principal on such Mortgage Loan) to
compensate the holder for reinvestment losses based on the value of an interest
rate index at or near the time of prepayment. Any other prepayment premiums,
penalties and fees not so calculated will not be considered "Yield Maintenance
Charges". In addition, any Excess Defeasance Deposit Proceeds will not be
considered "Yield Maintenance Charges". In the event that a Yield Maintenance
Charge shall become due for any particular Serviced Mortgage Loan, the Master
Servicer shall be required to follow the terms and provisions contained in the
applicable Mortgage Note, provided, however, that, in the event the particular
Mortgage Note shall not specify the U.S. Treasuries which shall be used in
determining the discount rate or the reinvestment yield to be applied in such
calculation, the Master Servicer shall be required to use those U.S. Treasuries
which shall generate the lowest discount rate or reinvestment yield for the
purposes thereof. Accordingly, if either no U.S. Treasury issue, or more than
one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the subject Serviced
Mortgage Loan or the actual term remaining through the related Stated Maturity
Date or Anticipated Repayment Date, as applicable), the Master Servicer shall
use the applicable U.S. Treasury whose reinvestment yield is the lowest, with
such yield being based on the bid price for such issue as published in The Wall
Street Journal on the date that is 14 days prior to the date that the Yield
Maintenance Charge shall become due and payable (or, if such bid price is not
published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly compounded nominal yield. The monthly
compounded nominal yield ("MEY") is derived from the reinvestment yield or
discount rate and shall be defined as MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X
100, where BEY is defined as the U.S. Treasury Reinvestment Yield which is in
decimal form and not in percentage, and 1/6 is the exponential power to which a
portion of the equation is raised. For example, using a BEY of 5.50%, the MEY =
(12 X [{(1+ .055/2) ^ 0.16667}- 1]) X 100 where .055 is the decimal version of
the percentage 5.5% and 0.16667 is the decimal version of the exponential power.
The MEY in the above calculation is 5.44%.
"Yield Maintenance Treasury Rate" shall mean, for purposes of
calculating a Discount Rate, the yield calculated by the Master Servicer by
linear interpolation of the yields, as such yields are reported in Federal
Reserve Statistical Release H.15-Selected Interest Rates (519), under the
heading U.S. Government Securities/Treasury Constant Maturities, with respect to
the maturity dates set forth thereunder, one longer and one shorter, most nearly
approximating the maturity date (or, in the case of an ARD Trust Mortgage Loan
or any successor REO Trust Mortgage Loan with respect thereto, the Anticipated
Repayment Date) of the relevant prepaid Trust Mortgage Loan or REO Trust
Mortgage Loan. If Federal Reserve Statistical Release H.15 is no longer
published or does not indicate the information set forth above, then the Master
Servicer shall select a comparable publication or source for the purposes of
determining the Yield Maintenance Treasury Rate.
"YM Principal Balance Certificates" shall mean, collectively, the
Class X-0, Xxxxx X-0, Class A-AB, Class A-3, Class A-1A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class
K Certificates.
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SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Adjustments to the Principal Distributions on
the Certificates.
(a) If any party hereto is reimbursed out of general collections on
the Mortgage Pool on deposit in the Pool Custodial Account for any unreimbursed
Advance that has been or is determined to be a Nonrecoverable Advance (together
with interest accrued and payable thereon pursuant to Section 3.11(g) or Section
4.03(d), as applicable, to the extent such interest was paid hereunder from a
source other than related Default Charges or Loss of Value Payments), then (for
purposes of calculating distributions on the Certificates) each such
reimbursement and payment of interest shall be deemed to have been made:
first, out of any amounts then on deposit in the Pool Custodial
Account that represent payments or other collections of principal Received by
the Trust with respect to the Trust Mortgage Loans and/or REO Trust Mortgage
Loans in the Loan Group that includes the Trust Mortgage Loan or REO Trust
Mortgage Loan in respect of which such Nonrecoverable Advance was made, and
which amounts, but for their application to reimburse such Nonrecoverable
Advance (and/or to pay interest thereon), would be included in the Available
Distribution Amount for the related Distribution Date;
second, out of any amounts then on deposit in the Pool Custodial
Account that represent payments or other collections of principal Received by
the Trust with respect to the Trust Mortgage Loans or REO Trust Mortgage Loans
in the Loan Group that does not include the Trust Mortgage Loan or REO Trust
Mortgage Loan in respect of which such Nonrecoverable Advance was made, and
which
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amounts, but for their application to reimburse such Nonrecoverable Advance
(and/or to pay interest thereon), would be included in the Available
Distribution Amount for the related Distribution Date;
third, out of any amounts then on deposit in the Pool Custodial
Account that represent any other payments and/or collections Received by the
Trust with respect to the Trust Mortgage Loans or REO Trust Mortgage Loans in
the Loan Group that includes the Trust Mortgage Loan or REO Trust Mortgage Loan
in respect of which such Nonrecoverable Advance was made, and which amounts, but
for their application to reimburse such Nonrecoverable Advance (and/or to pay
interest thereon), would be included in the Available Distribution Amount for
the related Distribution Date;
fourth, out of any amounts then on deposit in the Pool Custodial
Account that represent any other payments and/or collections Received by the
Trust with respect to the Trust Mortgage Loans or REO Trust Mortgage Loans in
the Loan Group that does not include the Trust Mortgage Loan or REO Trust
Mortgage Loan in respect of which such Nonrecoverable Advance was made, and
which amounts, but for their application to reimburse such Nonrecoverable
Advance (and/or to pay interest thereon), would be included in the Available
Distribution Amount for the related Distribution Date; and
fifth, out of any other amounts then on deposit in the Pool Custodial
Account that may be available to reimburse the subject Nonrecoverable Advance
and/or to pay interest thereon.
(b) If and to the extent that any payment or other collection of
principal of any Trust Mortgage Loan or REO Trust Mortgage Loan is deemed to be
applied in accordance with Section 1.03(a) to reimburse a Nonrecoverable Advance
or to pay interest thereon, and further if and to the extent that such payment
or other collection of principal constitutes part of the Principal Distribution
Amount for any Distribution Date, then: (i) the Adjusted Principal Distribution
Amount for such Distribution Date shall exclude such payment or other collection
of principal; and (ii) in accordance with clause (c) of the definition of
"Adjusted Principal Distribution Amount", in order to calculate the Adjusted
Principal Distribution Amount for such Distribution Date, the amount of such
payment or other collection of principal shall be subtracted from the Principal
Distribution Amount for such Distribution Date. In addition, for purposes of
determining the respective portions of the Adjusted Principal Distribution
Amount for any Distribution Date that are attributable to the two Loan Groups,
the Trustee shall take into account whether any payment or other collection of
principal excluded from such Adjusted Principal Distribution Amount in
accordance with the preceding sentence relates to a Trust Mortgage Loan or REO
Trust Mortgage Loan, as the case may be, in Loan Group No. 1 or Loan Group No.
2.
(c) If and to the extent that (1) any Advance is determined to be a
Nonrecoverable Advance, (2) such Advance is reimbursed or interest thereon is
paid out of general principal collections on the Mortgage Pool as contemplated
by Section 1.03(a) above and (3) the particular item for which such Advance was
originally made or such interest on such Advance, as the case may be, is
subsequently Received by the Trust (in whole or in part) out of payments or
other collections in respect of the related Trust Mortgage Loan or REO Trust
Mortgage Loan (such item or such interest on such Advance, as the case may be,
if and to the extent so collected, a "Recovered Amount"), then: (i) without
duplication of any amounts already included therein, the Adjusted Principal
Distribution Amount for the Distribution Date that corresponds to the related
Collection Period in which such item or such interest on such Advance, as the
case may be, was Received by the Trust shall include such Recovered Amount; (ii)
in accordance with clause (b) of the definition of "Adjusted Principal
Distribution Amount", in order
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to calculate the Adjusted Principal Distribution Amount for the Distribution
Date that corresponds to the related Collection Period in which such item was
Received by the Trust, such Recovered Amount (to the extent not already included
therein) shall be added to the Principal Distribution Amount for such
Distribution Date; and (iii) such Advance or such interest thereon, as the case
may be, to the extent of such Recovered Amount, will no longer be considered to
have been reimbursed or paid, as the case may be, out of general principal
collections on the Mortgage Pool. In addition, if and to the extent that any
Advance is determined to be a Nonrecoverable Advance, interest on such Advance
is paid out of general principal collections on the Mortgage Pool as
contemplated by Section 1.03(a) above and such interest on such Advance is
subsequently reimbursed to the Trust out of Default Charges or Loss of Value
Payments collected on the Trust Mortgage Loan or REO Trust Mortgage Loan as to
which such Advance was made, then: (i) the Adjusted Principal Distribution
Amount for the Distribution Date that corresponds to the related Collection
Period in which such Default Charges were Received by the Trust or such Loss of
Value Payments were so applied shall include the portion of such Default Charges
or Loss of Value Payments that was applied to reimburse the Trust for such
interest on such Advance; (ii) in accordance with clause (b) of the definition
of "Adjusted Principal Distribution Amount", in order to calculate the Adjusted
Principal Distribution Amount for the Distribution Date that corresponds to the
related Collection Period in which such Default Charges were Received by the
Trust or such Loss of Value Payments were so applied, an amount equal to the
portion of such Default Charges or Loss of Value Payments that was applied to
reimburse the Trust for such interest on such Advance shall be added to the
Principal Distribution Amount for such Distribution Date; and (iii) such
interest on such Advance, to the extent that the Trust was reimbursed for such
interest out of such Default Charges or such Loss of Value Payments, will no
longer be considered to have been paid out of general principal collections on
the Mortgage Pool. In addition, for purposes of determining the respective
portions of the Adjusted Principal Distribution Amount for any Distribution Date
that are attributable to the two Loan Groups, the Trustee shall take into
account whether any Recovered Amount, Default Charges or Loss of Value Payments
included in such Adjusted Principal Distribution Amount in accordance with the
foregoing sentences of this Section 1.03(c) relates to a Trust Mortgage Loan or
REO Trust Mortgage Loan, as the case may be, in Loan Group No. 1 or Loan Group
No. 2; provided that, if the Nonrecoverable Advance or interest thereon to which
such Recovered Amount, Default Charges or Loss of Value Payments, as the case
may be, corresponds was deemed reimbursed or paid, as the case may be, out of
payments and other collections of principal attributable to both Loan Groups,
then such Recovered Amount, Default Charges or Loss of Value Payments, as the
case may be, shall be deemed allocated to the two Loan Groups, in each case up
to the amount of payments and other collections of principal attributable
thereto that were deemed applied to reimburse or pay, as the case may be, such
Nonrecoverable Advance or interest thereon, in the reverse order contemplated by
Section 1.03(a).
(d) Nothing contained in this Section 1.03 is intended to limit the
ability of any party hereto that is entitled to reimbursement hereunder for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.11(g) or Section 4.03(d)) to be reimbursed from collections of principal
Received by the Trust with respect to the Mortgage Pool. Instead the order of
priority set forth in Section 1.03(a) is a deemed allocation only for purposes
of calculating distributions on the Certificates.
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ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Trust Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust
be established pursuant to this Agreement and the laws of the State of New York
and that such trust be designated as "LB-UBS Commercial Mortgage Trust 2007-C2".
LaSalle is hereby appointed, and does hereby agree, to act as Trustee hereunder
and, in such capacity, to hold the Trust Fund in trust for the exclusive use and
benefit of all present and future Certificateholders.
The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the Trustee
in trust, without recourse, for the benefit of the Certificateholders, all the
right, title and interest of the Depositor in, to and under (i) the Trust
Mortgage Loans, (ii) the UBS/Depositor Mortgage Loan Purchase Agreement, (iii)
the Countrywide/Depositor Mortgage Loan Purchase Agreement, (iv) the
Greenwich/Depositor Mortgage Loan Purchase Agreement, (v) the respective
Co-Lender Agreements; and (vi) all other assets included or to be included in
the Trust Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Trust Mortgage Loans and due after the
Cut-off Date and, in the case of each Trust Mortgage Loan that is part of a Loan
Combination, is subject to the provisions of the related Co-Lender Agreement.
With respect to each Trust Mortgage Loan that is part of a Loan Combination, the
Trustee, on behalf of the Trust, assumes the obligations of the holder of such
Trust Mortgage Loan and the related Mortgage Note under, and agrees to be bound
by, the related Co-Lender Agreement.
The parties hereto acknowledge and agree that, notwithstanding Section
11.07, the transfer of the Trust Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by them to constitute a
sale.
The Trust Fund shall constitute the sole assets of the Trust. Except
as expressly provided herein, the Trust may not issue or invest in additional
securities, borrow money or make loans to other Persons. The fiscal year end of
the Trust shall be December 31.
(b) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall (in the case of each Xxxxxx Trust Mortgage
Loan) deliver to and deposit with (or cause to be delivered to and deposited
with), and the related Unaffiliated Mortgage Loan Seller has agreed pursuant to
the related Mortgage Loan Purchase Agreement (in the case of each Non-Xxxxxx
Trust Mortgage Loan) to deliver to and deposit with (or cause to be delivered to
and deposited with), on or before the Closing Date: (i) the Trustee or a
Custodian appointed thereby, the Mortgage File for such Trust Mortgage Loan with
copies of each Mortgage File to be delivered by the Trustee to, upon request,
the Master Servicer (and at the expense of the Trustee and not at the expense of
the Trust Fund), within 10 Business Days of such request; and (ii) the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
Sub-Servicer), all unapplied Escrow Payments and Reserve Funds in the possession
or under the control of the Depositor or the related Unaffiliated Mortgage Loan
Seller, as the case may be, that relate to such Trust Mortgage Loan (except in
the case of an Outside Serviced Trust
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Mortgage Loan). None of the Trustee, any Custodian, the Master Servicer or the
Special Servicer shall be liable for any failure by a Mortgage Loan Seller or
the Depositor to comply with the document delivery requirements of the
respective Mortgage Loan Purchase Agreements and this Section 2.01(b). In
addition, the Depositor shall, in the case of a Xxxxxx Trust Mortgage Loan that
is an Outside Serviced Trust Mortgage Loan, deliver to and deposit with, and the
related Unaffiliated Mortgage Loan Seller shall be required, pursuant to the
related Mortgage Loan Purchase Agreement, in the case of each Non-Xxxxxx Trust
Mortgage Loan that is an Outside Serviced Trust Mortgage Loan, to deliver to and
deposit with, the Master Servicer, within 45 days of the Closing Date, a copy of
the mortgage file that was delivered to the related Outside Trustee under the
related Non Trust Mortgage Loan Securitization Agreement.
After the Depositor's transfer of the Trust Mortgage Loans to the
Trustee pursuant to Section 2.01(a), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Trust Mortgage Loans.
(c) The Depositor hereby covenants that it shall retain with respect
to each Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust
Mortgage Loan), and the related Unaffiliated Mortgage Loan Seller has covenanted
in the related Mortgage Loan Purchase Agreement that it shall retain with
respect to each Non-Xxxxxx Trust Mortgage Loan (other than an Outside Serviced
Trust Mortgage Loan), an Independent Person (each such Person, a "Recording
Agent") through which the Depositor or the related UBS Mortgage Loan Seller, as
applicable, shall: (i) promptly (and in any event within 45 days following the
later of the Closing Date and the date on which all necessary recording
information is available to the subject Recording Agent) submit for recording in
the appropriate public office for real property records each related assignment
of Mortgage and assignment of Assignment of Leases in favor of, and delivered
under clause (a)(iv) of the definition of "Mortgage File" to, the Trustee; and
(ii) cause each such assignment of Mortgage and assignment of Assignment of
Leases to be delivered to the Trustee following its return by the appropriate
public office for real property records, with copies of any such returned
assignments to be delivered by the Trustee to the Master Servicer, at the
expense of the Depositor (in the case of Xxxxxx Trust Mortgage Loans) or the
related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust
Mortgage Loan), as applicable, at least every 90 days after the Closing Date (or
at such additional times upon the request of the Master Servicer if reasonably
necessary for the ongoing administration and/or servicing of the related
Serviced Trust Mortgage Loan by the Master Servicer); provided that, in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall obtain a
certified copy of the recorded original.
Notwithstanding the foregoing, the Depositor may, in the case of a
Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan),
and the related Unaffiliated Mortgage Loan Seller may, in the case of a
Non-Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage
Loan), request the Trustee to submit for recording any of the assignments of
Mortgage and/or assignments of Assignment of Leases referred to in the prior
paragraph, and in such event, the requesting party shall cause any such
unrecorded or unfiled document to be delivered to the Trustee. The Trustee shall
promptly undertake to submit for recording or filing any such document upon its
receipt thereof.
Each assignment of Mortgage and assignment of Assignment of Leases
referred to in the prior two paragraphs that is submitted for recording shall
reflect that it should be returned by the public
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recording office to the Trustee or its agent following recording; provided that,
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain therefrom a certified copy of the recorded original. At least every 90
days after the Closing Date (or at additional times upon the request of the
Master Servicer if reasonably necessary for the ongoing administration and/or
servicing of the related Trust Mortgage Loan by the Master Servicer) and at the
expense of the Depositor (in the case of a Xxxxxx Trust Mortgage Loan, other
than an Outside Serviced Trust Mortgage Loan) or the related Unaffiliated
Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan, other
than an Outside Serviced Trust Mortgage Loan), the Trustee shall forward to the
Master Servicer a copy of any of the aforementioned assignments of Mortgage
and/or assignments of Assignment of Leases that have been received by the
Trustee.
The Depositor shall bear the out-of-pocket costs and expenses of the
recording referred to in the first two paragraphs of this Section 2.01(c) with
respect to the Xxxxxx Trust Mortgage Loans (other than the Outside Serviced
Trust Mortgage Loans), and the related UMLS/Depositor Mortgage Loan Purchase
Agreement provides that the related Unaffiliated Mortgage Loan Seller shall bear
the out-of-pocket costs and expenses of the recording referred to in the first
two paragraphs of this Section 2.01(c) with respect to the Non-Xxxxxx Trust
Mortgage Loans (other than the Outside Serviced Trust Mortgage Loans).
If any of the assignments of Mortgage and/or assignments of Assignment
of Leases referred to in the first two paragraphs of this Section 2.01(c)
relating to a Non-Xxxxxx Trust Mortgage Loan (other than an Outside Serviced
Trust Mortgage Loan) are lost or returned unrecorded because of a defect
therein, then the Trustee shall direct the related Unaffiliated Mortgage Loan
Seller (pursuant to the related Mortgage Loan Purchase Agreement) promptly to
prepare or cause the preparation of a substitute therefor or to cure such
defect, as the case may be, and to deliver to the Trustee the substitute or
corrected document. If any of the assignments of Mortgage and/or assignments of
Assignment of Leases referred to in the first two paragraphs of this Section
2.01(c) relating to a Xxxxxx Trust Mortgage Loan (other than an Outside Serviced
Trust Mortgage Loan) are lost or returned unrecorded because of a defect
therein, then the Depositor shall promptly prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be, and shall deliver
to the Trustee the substitute or corrected document. The Trustee shall upon
receipt, whether from the related Unaffiliated Mortgage Loan Seller or the
Depositor, cause the same to be duly recorded.
In addition to the foregoing, the Trustee shall retain an Independent
Person (such Person, the "Filing Agent"), at the expense of Redwood Trust Inc.
(the "Payee"), pursuant to a letter agreement dated the Closing Date (the
"Filing Letter Agreement") between the Payee, the Depositor, the UBS Mortgage
Loan Seller and the Trustee, and the Trustee shall, with respect to each Trust
Mortgage Loan, through the Filing Agent: (i) promptly (and in any event within
45 days following the later of the Closing Date and the date on which all
necessary filing information is available to such Filing Agent) file in the
appropriate public office for UCC Financing Statements, each related assignment
of UCC Financing Statement prepared by or on behalf of the Depositor (with
respect to each Xxxxxx Trust Mortgage Loan, other than an Outside Serviced Trust
Mortgage Loan), or by or on behalf of the related Unaffiliated Mortgage Loan
Seller (with respect to each Non-Xxxxxx Trust Mortgage Loan, other than an
Outside Serviced Trust Mortgage Loan), in favor of, and delivered pursuant to
clause (a)(xiv) of the definition of "Mortgage File" to, the Trustee; and (ii)
cause each such assignment of UCC Financing Statement to be delivered to the
Trustee following its return by the appropriate public filing office for UCC
Financing Statements, with copies of any such returned assignments to be
delivered by the Trustee
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to the Master Servicer, at the expense of the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan), or at the expense of the related Unaffiliated Mortgage
Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), as applicable, at
least every 90 days after the Closing Date (or at such additional times upon the
request of the Master Servicer if reasonably necessary for the ongoing
administration and/or servicing of the related Trust Mortgage Loan by the Master
Servicer). Each assignment of UCC Financing Statement referred to in the prior
sentence that is filed by or on behalf of the Trustee shall reflect that the
file copy thereof should be returned to the Trustee or its agent following
filing. The Depositor (with respect to the Xxxxxx Trust Mortgage Loans) hereby
agrees, and each Unaffiliated Mortgage Loan Seller (with respect to its
Non-Xxxxxx Trust Mortgage Loans) has agreed pursuant to the related
UMLS/Depositor Mortgage Loan Purchase Agreement, to reasonably cooperate with
the Trustee (and the Filing Agent) with respect to the filing of the assignments
of UCC Financing Statements as described in this paragraph and to forward to the
Trustee filing confirmation, if any, received by such party in connection with
assignments of UCC Financing Statements filed in accordance with this paragraph.
Notwithstanding the foregoing, to the extent the Trustee provides the
Payee, pursuant to the Filing Letter Agreement, with an invoice for the expenses
(i) reasonably to be incurred in connection with the filings referred to in the
preceding paragraph and (ii) required to be paid by the Payee pursuant to the
Filing Letter Agreement, and such expenses are not paid by the Payee in advance
of such filings, the Trustee, at the expense of the Depositor (with respect to
each Xxxxxx Trust Mortgage Loan, other than an Outside Serviced Trust Mortgage
Loan), and at the expense of the related Unaffiliated Mortgage Loan Seller (with
respect to each Non-Xxxxxx Trust Mortgage Loan, other than an Outside Serviced
Trust Mortgage Loan), shall only be required to cause the Filing Agent to file
the assignments of UCC Financing Statements with respect to Trust Mortgage Loans
secured by hotel or hospitality properties.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall, in the case of each Xxxxxx Trust Mortgage
Loan (other than an Outside Serviced Trust Mortgage Loan), deliver to and
deposit with (or cause to be delivered to and deposited with), and the related
Unaffiliated Mortgage Loan Seller has agreed (pursuant to the related Mortgage
Loan Purchase Agreement), in the case of each Non-Xxxxxx Trust Mortgage Loan
(other than an Outside Serviced Trust Mortgage Loan), to deliver and deposit
with (or cause to be delivered to and deposited with), the Master Servicer (or,
at the direction of the Master Servicer, to and with the applicable
Sub-Servicer), within 45 days of the Closing Date, the Mortgage Loan Origination
Documents that relate to such Serviced Trust Mortgage Loan; provided that
neither the Depositor nor any Unaffiliated Mortgage Loan Seller shall be
required to deliver any draft documents, privileged or other communications or
correspondence, credit underwriting or due diligence analyses or information,
credit committee briefs or memoranda or other internal approval documents or
data or internal worksheets, memoranda, communications or evaluations.
The Master Servicer shall review the documents with respect to each
Serviced Trust Mortgage Loan delivered by the Depositor or any Unaffiliated
Mortgage Loan Seller pursuant to or as contemplated by the immediately preceding
paragraph and provide to the Depositor or such Unaffiliated, Mortgage Loan
Seller, as applicable, with a copy to the Controlling Class Representative and
the Special Servicer, a certificate in the form of Exhibit V attached hereto
(the "Master Servicer Certification") within 90 days of the Closing Date
acknowledging its (or, if the Master Servicer has directed that such documents
be delivered only to the applicable Sub-Servicer, the applicable Sub-Servicer's)
receipt as of the date of the Master Servicer Certification of such documents
actually received; provided that such
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review shall be limited to identifying the document received, the Serviced Trust
Mortgage Loan to which it purports to relate, that it appears regular on its
face and that it appears to have been executed (where appropriate).
Notwithstanding anything to the contrary set forth herein, to the extent the
Depositor or an Unaffiliated Mortgage Loan Seller, as applicable, has not been
notified in writing of its failure to deliver any document with respect to a
Serviced Trust Mortgage Loan required to be delivered pursuant to or as
contemplated by the immediately preceding paragraph prior to the date occurring
18 months following the date of the Master Servicer Certification, the Depositor
or such Unaffiliated Mortgage Loan Seller as applicable, shall have no
obligation to provide such document.
In addition, pursuant to the related Mortgage Loan Purchase Agreement,
each Mortgage Loan Seller will be required to deliver, on the Closing Date, to
the Master Servicer for deposit in the Pool Custodial Account, the Initial
Deposit relating to each Initial Deposit Mortgage Loan, if any, being sold by
such Mortgage Loan Seller.
The Master Servicer shall hold all funds, documents and records
received by it in accordance with this Section 2.01(d) (as well as any funds
received by it pursuant to Section 2.01(b)) on behalf of the Trustee in trust
for the benefit of the Certificateholders (and, insofar as they also relate to
any Serviced Non-Trust Mortgage Loan, on behalf of and for the benefit of the
related Serviced Non-Trust Mortgage Loan Noteholder).
(e) In connection with the obligations of the Master Servicer
hereunder, with regard to each Serviced Trust Mortgage Loan that is secured by
the interests of the related Mortgagor in a hospitality property and each
Serviced Trust Mortgage Loan that has a related letter of credit, the Depositor
(with respect to each such Serviced Trust Mortgage Loan that is a Xxxxxx Trust
Mortgage Loan) shall, and the related Unaffiliated Mortgage Loan Seller (with
respect to each such Serviced Trust Mortgage Loan that is a Non-Xxxxxx Trust
Mortgage Loan) will be obligated under the related Mortgage Loan Purchase
Agreement to, deliver to and deposit with the Master Servicer, on or before the
Closing Date, any related franchise agreement and franchise comfort letter and
the original of such letter of credit.
(f) It is not intended that this Agreement create a partnership or a
joint-stock association.
(g) Notwithstanding anything to the contrary in this Section 2.01,
other than as expressly provided in this Section 2.01, the Depositor shall not
have any obligations pursuant to or as contemplated by this Section 2.01 with
respect to the 0000 X Xxxxxx Note A-1 Trust Mortgage Loan and/or the One
Alliance Center Note A-2 Trust Mortgage Loan, the Countrywide Mortgage Loan
Seller shall not have any obligations pursuant to or as contemplated by this
Section 2.01 with respect to the One Alliance Center Note A-1 Trust Mortgage
Loan, and the Greenwich Mortgage Loan Seller shall not have any obligations
pursuant to or as contemplated by this Section 2.01 with respect to the 0000 X
Xxxxxx Note A-2 Trust Mortgage Loan. Each 2445 M Street Trust Mortgage Loan
Portion will be treated as a separate Trust Mortgage Loan for purposes of
determining the respective obligations of the Depositor and the Greenwich
Mortgage Loan Seller pursuant to or as contemplated by this Section 2.01. In
that regard, the 0000 X Xxxxxx Note A-2 Trust Mortgage Loan is a Xxxxxx Trust
Mortgage Loan, and the 0000 X Xxxxxx Note A-1 Trust Mortgage Loan is the only
Greenwich Trust Mortgage Loan. Each One Alliance Center Trust Mortgage Loan
Portion will be treated as a separate Trust Mortgage Loan for purposes of
determining the respective obligations of the Depositor and the Countrywide
Mortgage
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Loan Seller pursuant to or as contemplated by this Section 2.01. In that regard,
the One Alliance Center Note A-1 Trust Mortgage Loan is a Xxxxxx Trust Mortgage
Loan, and the One Alliance Center Note A-2 Trust Mortgage Loan is the only
Countrywide Trust Mortgage Loan.
SECTION 2.02. Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Trust Mortgage Loans and all documents delivered to it that constitute
portions of the related Mortgage Files and (ii) all other assets delivered to it
and included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents subsequently received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Trust Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
To the extent that the Mortgage File for any Serviced Combination Trust Mortgage
Loan relates to a Serviced Non-Trust Mortgage Loan, the Trustee shall also hold
such Mortgage File in trust for the use and benefit of the related Serviced
Non-Trust Mortgage Loan Noteholder. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, each Mortgage Loan
Seller and each Underwriter that, as to each Trust Mortgage Loan, (i) the
Specially Designated Mortgage Loan Documents are in its possession or the
possession of a Custodian on its behalf, and (ii) the original Mortgage Note
(or, if accompanied by a lost note affidavit, the copy of such Mortgage Note)
received by it or any Custodian with respect to such Trust Mortgage Loan has
been reviewed by it or by such Custodian on its behalf and (A) appears regular
on its face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appears to have been executed
(where appropriate) and (C) purports to relate to such Trust Mortgage Loan.
(b) The Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Mortgage Loan
(such review to be conducted with respect to each document so delivered, prior
to the date that a certification or deemed certification, as applicable, is
required to be delivered in accordance with the following sentence), and the
Trustee shall, or shall cause a Custodian on its behalf to, subject to Sections
2.01, 2.02(c) and 2.02(d), certify (at the times and in the manner set forth
below) to each of the other parties hereto, each Mortgage Loan Seller and each
Underwriter and, in the case of a Serviced Non-Trust Mortgage Loan, to the
related Serviced Non-Trust Mortgage Loan Noteholder(s), that, as to each
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification or delivered with a deemed
certification, as applicable): (A) all documents specified in clauses (a)(i)
through (a)(viii) and (a)(xiv) (without regard to the second parenthetical in
such clause (a)(xiv)) of the definition of "Mortgage File" or, in the case of an
Outside Serviced Trust Mortgage Loan, in clauses (b)(i) through (b)(iii) of the
definition of "Mortgage File", are in its possession or the possession of a
Custodian on its behalf; (B) the recordation/filing contemplated by Section
2.01(c) (except in the case of an Outside Serviced Trust Mortgage Loan) has been
completed (based solely on receipt by the Trustee or by a Custodian on its
behalf of the particular recorded/filed documents); (C) all documents received
by it or any Custodian with respect to such Mortgage Loan have been reviewed by
it or by such Custodian on its behalf and (1) appear regular on their face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (2) appear to have been executed
(where appropriate) and (3) purport to relate to such Mortgage Loan; and (D)
based on the examinations referred to in Section
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2.02(a) above and this Section 2.02(b) and only as to the foregoing documents,
the information set forth in the Trust Mortgage Loan Schedule with respect to
the items specified in clauses (v) and (vi)(B) of the definition of "Trust
Mortgage Loan Schedule" accurately reflects the information set forth in the
Mortgage File. The certification referred to in the first sentence of this
Section 2.02(b) shall be delivered by the Trustee or a Custodian on its behalf
in writing: (i) whether or not any exceptions are noted, substantially in the
form of Exhibit C hereto (with an exception report annexed thereto), on or about
the 60th day following the Closing Date; and (ii) if any exceptions are noted,
substantially in the form of Exhibit C hereto (with an exception report annexed
thereto), upon the earliest to occur of (X) the second anniversary of the
Closing Date, (Y) the day on which all material exceptions have been removed and
(Z) the day on which the Depositor or the related Unaffiliated Mortgage Loan
Seller, as applicable, has repurchased the last affected Trust Mortgage Loan);
and (iii) if any exceptions are noted following the initial certification in
clause (i) of this sentence, in the form of an updated exception report, on or
about the 90th day following the Closing Date and monthly thereafter until the
final certification in clause (ii) of this sentence is delivered (and upon and
by delivery of each such updated exception report the Trustee shall be deemed to
have made the certifications set forth in clauses (A) through (D) of the first
sentence of this Section 2.02(b) as to each Mortgage Loan then subject to this
Agreement, except as specifically identified in such updated exception report).
If the Trustee's obligation to deliver the certifications contemplated in this
subsection terminates because two years have elapsed since the Closing Date, the
Trustee shall (or shall cause a Custodian on its behalf to) deliver a comparable
certification, upon request, to any party hereto, any Serviced Non-Trust
Mortgage Loan Noteholder and/or any Underwriter.
(c) None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation to inspect, review or examine any
of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents specified in
clauses (a)(i) through (a)(viii) and (a)(xiv) (or, in the case of an Outside
Serviced Trust Mortgage Loan, in clauses (b)(i) through (b)(iii)) of the
definition of "Mortgage File" have been received and such additional information
as will be necessary for delivering the certifications required by Sections
2.02(a) and (b) above.
(e) The Trustee, directly or through a Custodian retained by it,
shall: (i) provide for the safekeeping and preservation of the Mortgage Files
with respect to the Trust Mortgage Loans; (ii) segregate such Mortgage Files
from its own assets and the assets retained by it for others; (iii) maintain
such Mortgage Files in secure and fire resistant facilities in compliance with
customary industry standards; (iv) maintain disaster recovery protocols to
ensure the preservation of such Mortgage Files in the event of force majeure;
and (v) track and monitor the receipt and movement internally and externally of
such Mortgage Files and any release and reinstatement thereof.
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SECTION 2.03. Repurchase of Trust Mortgage Loans for Document Defects
and Breaches of Representations and Warranties.
(a) If any party hereto (other than the Depositor) discovers or
receives written notice, with respect to any Trust Mortgage Loan, that (i) any
document (A) constituting a part of the related Mortgage File pursuant to
clauses (a)(i) through (a)(xx) (or, in the case of an Outside Serviced Trust
Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File", (B)
specifically set forth on Schedule IX hereto with respect to a Xxxxxx Trust
Mortgage Loan only or (C) specifically set forth on Exhibit D to the related
Mortgage Loan Purchase Agreement with respect to any Non-Xxxxxx Trust Mortgage
Loan only, has not been executed (if applicable) or is missing (each, a
"Document Defect") or (ii) there exists a breach of any representation or
warranty of the related Unaffiliated Mortgage Loan Seller made pursuant to
Section 3(b) of the related Mortgage Loan Purchase Agreement with respect to any
Non-Xxxxxx Trust Mortgage Loan (a "Breach") or a breach of any representation or
warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect
to any Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shall give
prompt written notice thereof to each Rating Agency, the related Mortgage Loan
Seller, the other parties hereto and the Controlling Class Representative. If
the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related
Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan) receives written notice or obtains actual knowledge of a Document Defect
or a Breach with respect to any Trust Mortgage Loan, and such Document Defect or
Breach, as of the date specified in the fourth paragraph of this Section
2.03(a), materially and adversely affects the value of the subject Trust
Mortgage Loan, then such Document Defect shall constitute a "Material Document
Defect" or such Breach shall constitute a "Material Breach", as the case may be.
In the event the Depositor obtains actual knowledge of a Material Document
Defect or Material Breach, then the Depositor shall deliver written notification
to the Trustee with respect thereto.
Promptly upon becoming aware of any Material Document Defect or
Material Breach with respect to a Non-Xxxxxx Trust Mortgage Loan, the Trustee
shall deliver a Seller/Depositor Notification to the related Unaffiliated
Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall
require the related Unaffiliated Mortgage Loan Seller, within the time period
and subject to the conditions provided for in the applicable Mortgage Loan
Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and
2.03(e), to cure such Material Document Defect or Material Breach, as the case
may be, in all material respects, or repurchase the affected Trust Mortgage Loan
or any related REO Property (or, in the case of an REO Property related to a
Loan Combination, the Trust's interest therein) at the applicable Purchase Price
by wire transfer of immediately available funds to the Pool Custodial Account.
Promptly upon becoming aware of any such Material Document Defect or Material
Breach with respect to a Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a
Seller/Depositor Notification to the Depositor, the Master Servicer and the
Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e)
and 2.03(f), (A) not later than (1) 90 days after the Depositor and the Trustee
have agreed upon the existence of such Material Document Defect or Material
Breach or (2) 60 days after an arbitration panel makes a binding determination,
in accordance with the provisions of Section 2.03(i), that a Material Document
Defect or Material Breach exists or (B) in the case of a Material Document
Defect or Material Breach that affects whether a Xxxxxx Trust Mortgage Loan is
or will continue to be a "qualified mortgage" within the meaning of the REMIC
Provisions (a "Qualified Mortgage"), not later than 90 days following the
discovery by any party of such Material Document Defect or Material Breach (and
such 90-day or 60-day period, as applicable, in the case of clause (A)(1),
(A)(2) or (B) (with respect to a Xxxxxx Trust Mortgage Loan), and any "Initial
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Resolution Period", as defined in the related Mortgage Loan Purchase Agreement
(with respect to a Non-Xxxxxx Trust Mortgage Loan), as applicable, are each
referred to herein as an "Initial Resolution Period"), (i) cure such Material
Document Defect or Material Breach, as the case may be, in all material respects
(which cure shall include payment of any out-of-pocket expenses that are
reasonably incurred and directly attributable to pursuing such a claim based on
such Material Document Defect or Material Breach associated therewith) or (ii)
if any such Material Document Defect or Material Breach, as the case may be,
cannot be cured within the Initial Resolution Period, repurchase the affected
Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the case of an
REO Property related to a Loan Combination, the Trust's interest therein) at the
applicable Purchase Price by wire transfer of immediately available funds to the
Pool Custodial Account; provided, however, that if (w) such Material Document
Defect or Material Breach is capable of being cured but not within the Initial
Resolution Period, (x) such Material Document Defect or Material Breach, as the
case may be, does not affect whether any Xxxxxx Trust Mortgage Loan is a
Qualified Mortgage, (y) the Depositor has commenced and is diligently proceeding
with the cure of such Material Document Defect or Material Breach, as the case
may be, within the Initial Resolution Period, and (z) the Depositor shall have
delivered to the Trustee an Officer's Certificate confirming that such Material
Breach or Material Document Defect, as the case may be, is not capable of being
cured within the applicable Initial Resolution Period, setting forth what
actions the Depositor is pursuing in connection with the cure thereof and
stating that the Depositor anticipates that such Material Breach or Material
Document Defect, as the case may be, will be cured within an additional period
not to exceed either 90 days beyond the end of the applicable Initial Resolution
Period (in the event the Depositor and the Trustee have agreed upon the
existence of such Material Document Defect or Material Breach as described in
clause (A)(1) of the second sentence of this paragraph) or 45 days beyond the
end of the applicable Initial Resolution Period (in the event an arbitration
panel has made a binding determination, as described in clause (A)(2) of the
second sentence of this paragraph, that a Material Document Defect or Material
Breach exists), then the Depositor shall have such additional 90-day period or
45-day period, as the case may be (such additional 90-day period or 45-day
period, as the case may be (with respect to a Xxxxxx Trust Mortgage Loan), and
any "Resolution Extension Period", as defined in the related Mortgage Loan
Purchase Agreement (with respect to a Non-Xxxxxx Trust Mortgage Loan), as
applicable, are each referred to herein as a "Resolution Extension Period"), to
complete such cure or, failing such, to repurchase the affected Trust Mortgage
Loan (or the related Mortgaged Property); and provided, further, that, if any
such Material Document Defect is still not cured after the applicable Initial
Resolution Period and any such applicable Resolution Extension Period solely due
to the failure of the Depositor to have received a recorded document, then the
Depositor shall be entitled to continue to defer its cure and repurchase
obligations in respect of such Material Document Defect so long as the Depositor
certifies to the Trustee every six months thereafter that the Material Document
Defect is still in effect solely because of its failure to have received the
recorded document and that the Depositor is diligently pursuing the cure of such
defect (specifying the actions being taken). The parties acknowledge that
neither delivery of a certification or schedule of exceptions to the Depositor
(in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated
Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan) pursuant
to Section 2.02(b) or otherwise nor possession of such certification or schedule
by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan), or the related
Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan) shall, in and of itself, constitute delivery of notice of any Material
Document Defect or Material Breach or knowledge or awareness by the Depositor or
the related Unaffiliated Mortgage Loan Seller, as the case may be, of any
Material Document Defect or Material Breach.
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If, during the period of deferral by the Depositor of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, or during any comparable deferral by an
Unaffiliated Mortgage Loan Seller of its cure and repurchase obligations as
provided in Section 5 of the related Mortgage Loan Purchase Agreement, the Trust
Mortgage Loan that is the subject of the Material Document Defect either becomes
a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or
actual assumption of the obligations of the related Mortgagor under such Trust
Mortgage Loan, then (i) any party to this Agreement that becomes aware of such
event shall deliver a Seller/Depositor Notification to such effect (unless a
Seller/Depositor Notification with respect to such event has already been
delivered by another party) to the Master Servicer, the Special Servicer, the
Trustee and either the Depositor (in the case of a Xxxxxx Trust Mortgage Loan)
or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx
Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event,
shall deliver a Seller/Depositor Notification to the Master Servicer, the
Special Servicer and either the Depositor (in the case of a Xxxxxx Trust
Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of
a Non-Xxxxxx Trust Mortgage Loan), providing notice of such event and directing
the Depositor or the related Unaffiliated Mortgage Loan Seller, as applicable,
to cure the subject Material Document Defect within 15 days of receipt of such
Seller/Depositor Notification. If, upon the expiration of such 15-day period,
the Depositor or the related Unaffiliated Mortgage Loan Seller, as applicable,
has failed to cure the subject Material Document Defect, then the Master
Servicer or the Special Servicer, as applicable, shall be entitled (but not
obligated) to perform the obligations of the Depositor or the related
Unaffiliated Mortgage Loan Seller, as applicable, with respect to curing the
subject Material Document Defect; and, upon electing to perform such
obligations, the Master Servicer or the Special Servicer, as applicable, shall
promptly deliver a Seller/Depositor Notification to such effect. In connection
with the preceding sentence, the Depositor will, and each related Unaffiliated
Mortgage Loan Seller will be obligated under the related Mortgage Loan Purchase
Agreement to, pay all reasonable actual out-of-pocket costs and expenses in
connection with the applicable servicer's effecting such cure.
Provided that if any Seller/Depositor Notification with respect to a
Material Document Defect or Material Breach is received by the Depositor (in the
case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan
Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), in accordance with the
provisions of this Section 2.03, within 24 months of the Closing Date, the
material and adverse effect of the subject Document Defect or Breach shall be
determined as of the date of the Mortgage Loan Purchase Agreements. After the
expiration of 24 months following the Closing Date, the material and adverse
effect of any Document Defect or Breach that was not the subject of another
Seller/Depositor Notification received by the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the
case of a Non-Xxxxxx Trust Mortgage Loan), in accordance with the provisions of
this Section 2.03, within 24 months of the Closing Date, shall be determined as
of the date of such Seller/Depositor Notification.
If, in connection with any Material Breach, the Depositor is obligated
to repurchase any Xxxxxx Trust Mortgage Loan pursuant to this Section 2.03, or
an Unaffiliated Mortgage Loan Seller is obligated to repurchase any Non-Xxxxxx
Trust Mortgage Loan pursuant to the related Mortgage Loan Purchase Agreement,
then such obligation shall extend to any REO Trust Mortgage Loan with respect
thereto; provided that (i) the subject Material Breach existed as to the subject
predecessor Trust Mortgage Loan prior to the date the related Mortgaged Property
became an REO Property or within 90 days thereafter, and (ii) the party having
the repurchase obligation had received, no later than 90 days following the date
on which the related Mortgaged Property became an REO Property, a
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Seller/Depositor Notification from the Trustee regarding the occurrence of the
subject Material Breach and directing such party to repurchase the subject Trust
Mortgage Loan.
(b) In connection with the events in Section 2.03(a), the Trustee
shall prepare and deliver, in each case promptly upon becoming aware of such
event, to the Master Servicer, the Special Servicer and either the Depositor
(with respect to a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated
Mortgage Loan Seller (with respect to a Non-Xxxxxx Trust Mortgage Loan), as
applicable, a Seller/Depositor Notification identifying and describing the
circumstances identified in the definition of "Seller/Depositor Notification"
(unless, in the case of an event described in clauses (iii), (iv) and/or (vi),
as applicable, of the definition of "Seller/Depositor Notification", a
Seller/Depositor Notification with respect to such event has already been
delivered by the Master Servicer or the Special Servicer). Further, in
connection with the events in Section 2.03(a), the Master Servicer or the
Special Servicer, as applicable, shall prepare and deliver, in each case
promptly upon becoming aware of such event, to the other such servicer, the
Trustee and either the Depositor (with respect to a Xxxxxx Trust Mortgage Loan)
or the related Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx
Trust Mortgage Loan), as applicable, a Seller/Depositor Notification identifying
and describing the circumstances identified in clauses (iii), (iv) and/or (vi),
as applicable, of the definition of "Seller/Depositor Notification" (unless such
notification has already been delivered). A copy of each such Seller/Depositor
Notification shall also be delivered to the Controlling Class Representative
and, in the case of an event described in clauses (v) and/or (vii) of the
definition of "Seller/Depositor Notification", to either internal counsel to the
Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or counsel to the
related Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx Trust
Mortgage Loan), as applicable, to the extent the Trustee, Master Servicer or
Special Servicer, as applicable, knows the identity of such person.
(c) If one or more (but not all) of the Trust Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Depositor
or the related Unaffiliated Mortgage Loan Seller as contemplated by this Section
2.03, then, prior to the subject repurchase, the Depositor or the related
Unaffiliated Mortgage Loan Seller, as the case may be, or its designee shall use
its reasonable efforts, subject to the terms of the related Trust Mortgage
Loan(s), to prepare and, to the extent necessary and appropriate, have executed
by the related Mortgagor and record, such documentation as may be necessary to
terminate the cross-collateralization between the Trust Mortgage Loan(s) in such
Cross-Collateralized Group that are to be repurchased, on the one hand, and the
remaining Trust Mortgage Loan(s) therein, on the other hand, such that those two
groups of Trust Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Trust Mortgage Loan Schedule as directly corresponding
thereto; provided that no such termination shall be effected unless and until
(i) the Controlling Class Representative, if one is then acting, has consented
(which consent shall not be unreasonably withheld and shall be deemed to have
been given if no written objection is received by the Depositor or the related
Unaffiliated Mortgage Loan Seller, as the case may be, within ten (10) Business
Days of the Controlling Class Representative's receipt of a written request for
such consent) and (ii) the Trustee has received from the Depositor or the
related Unaffiliated Mortgage Loan Seller, as the case may be, (A) an Opinion of
Counsel to the effect that such termination would not cause an Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor Trust Event
to occur with respect to the Grantor Trust and (B) written confirmation from
each Rating Agency that such termination would not cause an Adverse Rating Event
to occur with respect to any Class of Certificates; and provided, further, that
the Depositor, in the case of Xxxxxx Trust Mortgage Loans, or the related
Unaffiliated Mortgage Loan Seller, in the case of Non-Xxxxxx Trust Mortgage
Loans, may, at its
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option, purchase the entire subject Cross-Collateralized Group in lieu of
effecting a termination of the cross-collateralization. All costs and expenses
incurred by the Trustee or any Person on its behalf pursuant to this paragraph
shall be included in the calculation of the Purchase Price for the Trust
Mortgage Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining whether the subject Breach
or Document Defect, as the case may be, materially and adversely affects the
value of such Cross-Collateralized Group and (ii) the application of remedies,
such Cross-Collateralized Group shall be treated as a single Trust Mortgage
Loan.
(d) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Depositor set forth
in, or made pursuant to, paragraph (xlviii) of Schedule II hereto, or on the
part of the related Unaffiliated Mortgage Loan Seller set forth in, or made
pursuant to, paragraph (xlviii) of Exhibit B to the related Mortgage Loan
Purchase Agreement, in each case specifically relating to whether or not the
Mortgage Loan documents or any particular Mortgage Loan document for any
Mortgage Loan requires the related Mortgagor to bear the reasonable costs and
expenses associated with the subject matter of such representation or warranty,
as set forth in such representation or warranty, then the Master Servicer shall
(and the Special Servicer may) direct the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the
case of a Non-Xxxxxx Trust Mortgage Loan) in writing to wire transfer to the
Pool Custodial Account, within 90 days of such party's receipt of such
direction, the amount of any such reasonable costs and expenses incurred by the
Trust that (i) are due from the Mortgagor, (ii) otherwise would have been
required to be paid by the Mortgagor if such representation or warranty with
respect to such costs and expenses had in fact been true, as set forth in the
related representation or warranty, (iii) have not been paid by the Mortgagor,
(iv) are the basis of such Breach and (v) constitute "Covered Costs". Upon
payment of such costs, the Depositor (in the case of a Xxxxxx Trust Mortgage
Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of a
Non-Xxxxxx Trust Mortgage Loan) shall be deemed to have cured such Breach in all
respects. Provided that such payment is made, this paragraph describes the sole
remedy available to the Certificateholders and the Trustee on their behalf
regarding any such Breach, regardless of whether it constitutes a Material
Breach, and none of the Depositor (in the case of a Xxxxxx Trust Mortgage Loan)
or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx
Trust Mortgage Loan) shall be obligated to otherwise cure such Breach or
repurchase the affected Trust Mortgage Loan under any circumstances. Amounts
deposited in the Pool Custodial Account pursuant to this paragraph shall
constitute "Liquidation Proceeds" for all purposes of this Agreement (other than
Section 3.11(c)).
(e) Subject to the penultimate sentence of this paragraph and subject
to Section 2.03(d), if the Depositor determines that a Material Breach (other
than a Material Breach of a representation or warranty on the part of the
Depositor set forth in, or made pursuant to, paragraph (xvii) of Schedule II
hereto) or a Material Document Defect with respect to a Xxxxxx Trust Mortgage
Loan is not capable of being cured in accordance with Section 2.03(a), or the
related Unaffiliated Mortgage Loan Seller determines that a Material Breach
(other than a Material Breach of a representation or warranty on the part of the
related Unaffiliated Mortgage Loan Seller set forth in, or made pursuant to,
paragraph (xvii) of Exhibit B to the related Mortgage Loan Purchase Agreement)
or Material Document Defect with respect to a Non-Xxxxxx Trust Mortgage Loan is
not capable of being cured in accordance with Section 5(a) of the related
Mortgage Loan Purchase Agreement, then (in lieu of repurchasing such Trust
Mortgage Loan) the Depositor or the related Unaffiliated Mortgage Loan Seller,
as the case may be, may, at its sole option, pay a cash amount equal to the loss
of value (each such payment, a "Loss of
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Value Payment") with respect to such Trust Mortgage Loan, which loss of value is
directly attributed to such Material Breach or Material Document Defect, as the
case may be. The amount of each such Loss of Value Payment shall be determined
either (i) by mutual agreement of the Special Servicer on behalf of the Trust
with respect to the subject Material Breach or Material Document Defect, as the
case may be, and any of the Depositor or the related Unaffiliated Mortgage Loan
Seller, as the case may be, or (ii) by an arbitration panel pursuant to a
binding arbitration proceeding in accordance with Section 2.03(i); provided
that, in the event there is an arbitration proceeding for determining the
existence of a Material Breach or a Material Document Defect with respect to any
Trust Mortgage Loan, such arbitration proceeding must also include a
determination of the amount of the loss of value to such Trust Mortgage Loan
directly attributed to such Material Breach or such Material Document Defect, as
the case may be. Provided that such payment is made, this paragraph describes
the sole remedy available to the Certificateholders and the Trustee on their
behalf regarding any such Material Breach or Material Document Defect, and
neither the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) nor the
related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust
Mortgage Loan) shall be obligated to otherwise cure such Material Breach or
Material Document Defect or repurchase the affected Mortgage Loan based on such
Material Breach or Material Document Defect under any circumstances.
Notwithstanding the foregoing provisions of this Section 2.03(e), if 95% or more
of the loss of value to a Mortgage Loan was caused by a Material Breach or
Material Document Defect, which Material Breach or Material Document Defect is
not capable of being cured, then this Section 2.03(e) shall not apply, and the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related
Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan) shall be obligated to repurchase the affected Mortgage Loan at the
applicable Purchase Price in accordance with Section 2.03(a); and, furthermore,
neither the Depositor nor the related Unaffiliated Mortgage Loan Seller shall
have the option of delivering Loss of Value Payments in connection with any
Material Breach relating to a Trust Mortgage Loan's failure to be a Qualified
Mortgage. In the event there is a Loss of Value Payment made by the Depositor or
an Unaffiliated Mortgage Loan Seller, as the case may be, in accordance with
this Section 2.03(e), the amount of such Loss of Value Payment shall be
deposited into the Loss of Value Reserve Fund to be applied in accordance with
Section 3.05(e).
In the event the amount of any Loss of Value Payment is determined by
an arbitration panel pursuant to a binding arbitration proceeding in accordance
with Section 2.03(i), then such Loss of Value Payment shall also include the
payment of any costs and expenses (including costs incurred in establishing the
amount of any related loss of value to the subject Trust Mortgage Loan,
including reasonable legal fees) that are reasonably incurred in good faith by
the Master Servicer, the Special Servicer and/or the Trustee (on behalf of the
Trust) in enforcing the rights of the Trust against the Depositor or the related
Unaffiliated Mortgage Loan Seller, as applicable, with respect to the subject
Material Breach or Material Document Defect, as the case may be; provided that,
if the Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or the related
Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx Trust Mortgage
Loan) tenders a loss of value payment in a specified amount in connection with a
Material Breach or Material Document Defect, as the case may be, prior to the
institution of arbitration proceedings and that offer is rejected, and if an
amount equal to or less than the loss of value payment originally tendered by
the Depositor or the related Unaffiliated Mortgage Loan Seller, as the case may
be, is ultimately determined by an arbitration panel pursuant to a binding
arbitration proceeding, in accordance with Section 2.03(i), to be the actual
amount of the Loss of Value Payment attributed to such Material Breach or
Material Document Defect, as the case may be, then that Loss of Value Payment
shall not include the payment of any costs or expenses incurred in enforcing the
rights of the Trust against the Depositor or the related Unaffiliated Mortgage
Loan Seller, as applicable,
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with respect to the subject Material Breach or Material Document Defect, as the
case may be; and provided, further, that, if the Special Servicer requests a
loss of value payment from the Depositor or the related Unaffiliated Mortgage
Loan Seller, as the case may be, of a specified amount in connection with a
Material Breach or Material Document Defect, as the case may be, and the
Depositor or the related Unaffiliated Mortgage Loan Seller, as the case may be,
refuses to pay that amount, and if an amount equal to or greater than the loss
of value payment originally requested by the Special Servicer is ultimately
determined by an arbitration panel pursuant to a binding arbitration proceeding,
in accordance with Section 2.03(i), to be the actual Loss of Value Payment
attributable to such Material Document Defect or Material Breach, then that Loss
of Value Payment shall also include the payment of any costs or expenses
reasonably incurred in good faith in enforcing the rights of the Trust against
the Depositor or the related Unaffiliated Mortgage Loan Seller, as applicable,
with respect to the subject Material Breach or Material Document Defect, as the
case may be; and provided, further, that, if the Depositor (with respect to a
Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller
(with respect to a Non-Xxxxxx Trust Mortgage Loan) tenders a loss of value
payment in connection with a Material Breach or Material Document Defect, as the
case may be, in a specified amount, and the Special Servicer rejects such tender
and requests a greater loss of value payment amount, and an amount in between
the respective amounts tendered and requested is ultimately determined by an
arbitration panel pursuant to a binding arbitration proceeding, in accordance
with Section 2.03(i), to be the actual Loss of Value Payment attributable to
such Material Breach or Material Document Defect, as the case may be, then that
Loss of Value Payment shall also include the payment of an amount equal to the
product of (i) all costs and expenses reasonably incurred in connection with
that arbitration proceeding, multiplied by (ii) a fraction, the numerator of
which is the excess of the amount determined by that arbitration proceeding over
the amount tendered by the Depositor or the related Unaffiliated Mortgage Loan
Seller, as the case may be, and the denominator of which is the excess of the
amount requested by the Special Servicer over the amount tendered by the
Depositor or the related Unaffiliated Mortgage Loan Seller, as the case may be.
Notwithstanding the foregoing, in the event any Loss of Value Payment is
determined by the parties hereto by mutual agreement (and not by an arbitration
proceeding), that Loss of Value Payment shall not include any costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee unless such
costs and expenses were specifically included in such mutual agreement.
(f) Notwithstanding the foregoing, if there exists a Material Breach
of the representation or warranty on the part of (A) the Depositor set forth in,
or made pursuant to, paragraph (xvii) of Schedule II hereto with respect to any
Xxxxxx Trust Mortgage Loan, or (B) the related Unaffiliated Mortgage Loan Seller
set forth in, or made pursuant to, paragraph (xvii) of Exhibit B to the related
Mortgage Loan Purchase Agreement with respect to any Non-Xxxxxx Trust Mortgage
Loan, and, in each case, the subject Mortgage Loan becomes a Qualified Mortgage
prior to the expiration of the Initial Resolution Period applicable to a
Material Document Defect or Material Breach that affects whether a Mortgage Loan
is a Qualified Mortgage, and without otherwise causing an Adverse REMIC Event or
an Adverse Grantor Trust Event, then such breach will be cured and the Depositor
or the related Unaffiliated Mortgage Loan Seller, as the case may be, will not
be obligated to repurchase or otherwise remedy such Breach.
(g) In connection with any purchase or repurchase of a Trust Mortgage
Loan pursuant to or otherwise as contemplated by this Section 2.03, the Trustee,
the Custodian, the Master Servicer and the Special Servicer shall each tender to
the purchasing/repurchasing entity, upon delivery to each of them of a receipt
executed by the purchasing/repurchasing entity, all portions of the Mortgage
File and
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other documents pertaining to such Trust Mortgage Loan possessed by it, and each
document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to the purchasing/repurchasing
entity or its designee in the same manner, but only if the respective documents
have been previously assigned or endorsed to the Trustee, and pursuant to
appropriate forms of assignment, substantially similar to the manner and forms
pursuant to which such documents were previously assigned to the Trustee;
provided that such tender by the Trustee or by a Custodian on its behalf shall
be conditioned upon its receipt from the Master Servicer of a Request for
Release accompanied by a certification of a Servicing Officer to the effect that
all amounts received or to be received in connection with such purchase or
repurchase, as the case may be, which are required to be deposited in the Pool
Custodial Account pursuant to Section 3.04(a) have been deposited. The Master
Servicer shall, and is hereby authorized and empowered by the Trustee to,
prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03(g), and such other instruments as
may be necessary or appropriate to transfer title to an REO Property or any
interest therein in connection with the repurchase of an REO Trust Mortgage Loan
and the Trustee shall execute and deliver any powers of attorney necessary to
permit the Master Servicer to do so; provided, however, that the Trustee shall
not be held liable for any misuse of any such power of attorney by the Master
Servicer.
(h) The related Mortgage Loan Purchase Agreement provides the sole
remedies available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to any
Non-Xxxxxx Trust Mortgage Loan. This Section 2.03 provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to any
Xxxxxx Trust Mortgage Loan. Any purchase of a Trust Mortgage Loan pursuant to or
as contemplated by this Section 2.03 shall be on a whole loan, servicing release
basis.
(i) The parties hereto agree that any controversy or claim arising
under Section 5(a), Section 5(b) and/or Section 5(g) of any UMLS/Depositor
Mortgage Loan Purchase Agreement shall be resolved in accordance with the
Mediation/Arbitration procedures set forth in Section 5(i) of such
UMLS/Depositor Mortgage Loan Purchase Agreement. In addition, subject to the
prior sentence, and without intending to create any overlap between the prior
sentence and this sentence, the parties hereto further agree that any
controversy or claim (a "Dispute") involving a Xxxxxx Trust Mortgage Loan and/or
the Depositor and arising under Section 2.03(a) and/or Section 2.03(e) of this
Agreement shall be resolved in accordance with the following
Mediation/Arbitration procedures set forth in this Section 2.03(i).
If the Depositor receives a Seller/Depositor Notification pursuant to
Section 2.03(a) of this Agreement regarding the alleged existence of a Material
Document Defect or Material Breach with respect to any Xxxxxx Trust Mortgage
Loan and requesting the Depositor to cure or repurchase the affected Xxxxxx
Trust Mortgage Loan in connection therewith (a "Notice"), and the Depositor does
not agree upon the existence of such Material Document Defect or Material Breach
within 90 days of receiving such Notice, then, unless otherwise agreed to by the
parties involved in the Dispute, that Dispute shall be submitted to non-binding
mediation in accordance with the provisions of this paragraph; provided, that if
the Depositor is proceeding to cure the subject Material Document Defect or
Material Breach, then that Dispute shall not be submitted to mediation until the
expiration of the related Resolution Extension Period and the failure of the
Depositor to complete such cure (unless otherwise agreed to by the parties
involved in the Dispute). Following the 90-day period referred to in the
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preceding sentence and subject to the preceding proviso, any party to this
Agreement that is involved in the Dispute may send a written letter (a
"Mediation Letter") to another party to this Agreement that they wish the
mediation process to begin between the sender and the recipient of such
Mediation Letter. Following receipt of a Mediation Letter, a mediator(s) shall
be selected by agreement of the parties to the mediation. If such parties cannot
agree on a mediator, then the mediation shall be conducted by three mediators,
one of which shall be selected by the Depositor and one of which shall be
selected by the Trustee or its designee. Each of the parties to the mediation
shall submit the name of the Person it has selected to serve as a mediator to
the opposing party within 10 days of the date of the Mediation Letter. If either
party fails to submit the name of its selected mediator within 10 days of the
date of the Mediation Letter, the other party shall have the right to select the
second mediator in addition to its own mediator (provided that such party has
submitted the name of its selected mediator within 10 days of the date of the
Mediation Letter). The two mediators selected by the party(ies) shall appoint a
third mediator within 20 days of the date of the Mediation Letter or such longer
time period as agreed to by the parties to the mediation. Any mediator(s) so
designated must be acceptable to both (i) the Depositor and (ii) the Trustee,
the Master Servicer or the Special Servicer, whichever such party is the party
to the mediation on behalf of the Trust (or such party's designee). Any
mediators appointed or selected pursuant to the provisions of this paragraph
must be experienced professionals in the CMBS industry.
Any mediation related to a particular Dispute and commenced in
accordance with the preceding paragraph must be completed within 90 days of the
date of the Mediation Letter (or a longer period, if the parties to the
mediation agreed to extend the mediation). Any mediation referred to in this
Section 2.03(i) shall be conducted in the manner specified by the mediator(s)
and agreed upon by both (i) the Depositor and (ii) the Trustee, the Master
Servicer or the Special Servicer, whichever such party is the party to the
mediation on behalf of the Trust (or such party's designee), and any such
mediation shall be conducted in New York City to the exclusion of all other
locations (unless otherwise agreed to by the parties to the mediation). During
the mediation process, the parties to the mediation shall discuss their
differences voluntarily and in good faith and attempt, with the assistance of
the mediator(s) as a facilitator of the negotiations, to reach an amicable
resolution of the Dispute. The mediation will be treated as a settlement
discussion and therefore will be confidential. No mediator selected in
accordance with this Section 2.03(i) may testify for either party in any later
proceeding relating to the Dispute. No recording or transcript shall be made of
the mediation proceedings. The fees and expenses of all mediator(s) shall be
shared equally by the parties to the mediation; provided, however, that the
party to the mediation that is acting on behalf of the Trust in accordance with
the provisions of this Section 2.03(i) or Section 5(i) of any UMLS/Depositor
Mortgage Loan Purchase Agreement shall, if and to the extent permitted under
Section 6.03 or Section 8.05(b), as applicable, be entitled to reimbursement or
indemnification by the Trust Fund for such fees and expenses.
Notwithstanding anything to the contrary herein, no party shall be
required to agree to a Dispute resolution pursuant to mediation and no decision
or resolution of a mediator or mediators shall be binding on any party unless
such decision or resolution is expressly agreed to by such party. In the event
the parties involved in the Dispute have not agreed to a Dispute resolution
pursuant to mediation at the termination of the mediation, then that Dispute
will be settled by arbitration in accordance with the succeeding paragraphs of
this Section 2.03(i).
If a Dispute has not been resolved within 90 days of the date of the
Mediation Letter (or such shorter or longer period as is expressly agreed to by
the parties to the mediation), the mediation shall terminate and the Dispute
will be settled by arbitration. Following the date of termination of
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mediation, which shall be the date occurring 90 days after the date of the
Mediation Letter unless otherwise expressly agreed to by the parties to the
mediation, arbitration may be commenced by any party to this Agreement involved
in the Dispute by sending a written notice to another party to this Agreement
involved in the Dispute that they wish the arbitration process to begin with
respect to the Dispute between the sender and the recipient of such written
notice. The date any such party receives written notice in accordance with this
Section 2.03(i) from another party that such party wishes to commence
arbitration shall be referred to as the "Arbitration Commencement Date". Any
arbitration hereunder shall be conducted in accordance with the provisions of
this Agreement and the American Arbitration Association Rules for Large Complex
Commercial Disputes ("AAA Rules"), but shall not be conducted by the American
Arbitration Association ("AAA"). Discovery will be permitted in connection with
the arbitration in accordance with the AAA Rules. In the event of a conflict,
the provisions of this Agreement will control. Such arbitration shall be
conducted before a panel of three arbitrators, regardless of the size of the
Dispute. The arbitration panel shall consist of one person selected by the
Depositor and one person selected by the Trustee, the Master Servicer or the
Special Servicer, whichever such party is the party to the arbitration on behalf
of the Trust (or such party's designee). Each such party shall submit the name
of the person it has selected to serve as an arbitrator to the other party
within 30 days of the Arbitration Commencement Date (or such longer period as is
expressly agreed to by the parties to the arbitration). If either such party
fails to submit the name of its selected arbitrator within 30 days of the
Arbitration Commencement Date, then the other such party shall have the right to
select the second arbitrator in addition to its own arbitrator (provided that
such party has submitted the name of its selected arbitrator within 30 days of
the Arbitration Commencement Date). The two arbitrators designated in accordance
with the two preceding sentences shall appoint a third arbitrator within 45 days
of the Arbitration Commencement Date (or such longer period as is expressly
agreed to by the parties to the arbitration). All arbitrators appointed or
selected pursuant to the provisions of this paragraph must be experienced
professionals in the CMBS industry. The third arbitrator shall be an Independent
person who has not previously been employed by either party and does not have a
direct or indirect interest in either party or the subject matter of the
arbitration. The two (2) arbitrators appointed by the parties to the arbitration
are not required to be neutral and it shall not be grounds for removal of either
of such arbitrators or for vacating an arbitration award that either of such
arbitrators has past or present relationships with the party that appointed such
arbitrator. No potential arbitrator may serve on the panel unless he or she has
agreed in writing to abide and be bound by the terms and provisions of this
Agreement and the AAA Rules and to keep confidential the terms of any
arbitration proceeding related to this Agreement and the terms of any
discussion, negotiation, decision, agreement or resolution in connection
therewith.
Any issue concerning the extent to which any Dispute is subject to
arbitration, or concerning the applicability, interpretation, or enforceability
of these procedures, including any contention that all or part of these
procedures are invalid or unenforceable, shall be resolved by the arbitrators.
In no event, notwithstanding that any provision of this Agreement is held to be
invalid or unenforceable, shall the arbitrators have the power to make an award
or impose a remedy that could not be made or imposed by a court deciding the
matter in the same jurisdiction. In no event shall the arbitrators have the
power to make an award or impose a remedy that is not contemplated by, or
conflicts with the terms and provisions of, this Agreement (other than any term
or provision of this Agreement that is held to be invalid or unenforceable).
Without limiting the foregoing, the arbitrators shall have no authority to award
treble, consequential or punitive damages of any type under any circumstances,
whether or not such damages may be available under the AAA Rules or any other
act or law. Subject to the provisions of this Agreement, the result of the
arbitration will be binding on the
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parties involved in the Dispute, and judgment on the arbitrators' award may be
entered, subject to the provisions of Section 11.04 of this Agreement, in any
court of competent jurisdiction.
All mediations and arbitrations shall be conducted in New York City to
the exclusion of all other locations (unless otherwise expressly agreed to by
the parties to the subject mediation or arbitration, as applicable). The party
to an arbitration that is acting on behalf of the Trust in accordance with the
provisions of this Section 2.03(i) or Section 5(i) of any UMLS/Depositor
Mortgage Loan Purchase Agreement shall, if and to the extent permitted under
Section 6.03 or Section 8.05(b), as applicable, be entitled to reimbursement or
indemnification by the Trust Fund for the fees and expenses incurred in
connection therewith.
The parties to this Agreement hereby agree to waive any right to trial
by jury fully to the extent that any such right shall now or hereafter exist
with regard to the rights and remedies contained in this Section 2.03(i);
provided, that if (i) any party to an arbitration governed by this Section
2.03(i) fails to abide by the rules or deadlines for that arbitration (as such
deadlines may be extended by express agreement of the parties to that
arbitration), or (ii) the applicable appointed arbitrators determine that the
subject Dispute cannot be resolved through arbitration either because the AAA
Rules are inapplicable to the Dispute and/or the Federal Arbitration Act is
inapplicable to the Dispute or for any other reason, then the other party (in
the case of clause (i)) or any party (in the case of clause (ii)) to this
Agreement involved in such arbitration may in its sole option, file a complaint
to resolve the Dispute through a legal proceeding and in accordance with the
provision contained in Section 11.04 hereof.
If any of the provisions of this Section 2.03(i) are determined by a
court of law to be invalid or unenforceable, the remaining provisions shall
remain in effect and be binding on the parties involved in the Dispute to the
fullest extent permitted by law.
(j) In the event that the Master Servicer receives notice from the
Mortgagor under any Early Defeasance Trust Mortgage Loan that (i) such Mortgagor
intends to defease such Early Defeasance Trust Mortgage Loan in whole on or
before the second anniversary of the Closing Date and the cash amount tendered
by such Mortgagor to purchase Defeasance Collateral or other permitted
collateral in order to defease such Early Defeasance Trust Mortgage Loan (in
accordance with the related loan documents) is less than the Purchase Price that
would be applicable in the event of a repurchase of such Trust Mortgage Loan in
connection with a Material Breach or a Material Document Defect, or (ii) such
Mortgagor intends to partially defease such Early Defeasance Trust Mortgage Loan
on or prior to the second anniversary of the Closing Date, or (iii) such
Mortgagor intends to defease such Early Defeasance Trust Mortgage Loan in whole
on or before the second anniversary of the Closing Date and such Mortgagor is to
tender Defeasance Collateral or such other collateral as is permitted in
connection with a defeasance under the related loan documents that does not
constitute a cash amount equal to or greater than the Purchase Price set forth
in clause (i) above, then the Master Servicer shall promptly notify the Trustee
and either the Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or the
related Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx Trust
Mortgage Loan) of such Mortgagor's intention, and the Trustee shall direct the
Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or the related
Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx Trust Mortgage
Loan), as applicable, to repurchase (and the Depositor, with respect to a Xxxxxx
Trust Mortgage Loan, hereby agrees, and the related Unaffiliated Mortgage Loan
Seller, with respect to a Non-Xxxxxx Trust Mortgage Loan, pursuant to the
related Mortgage Loan Purchase Agreement, has agreed to repurchase) such Trust
Mortgage Loan at a price equal to (A) the Purchase Price that would be
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applicable in the event of a repurchase of such Trust Mortgage Loan in
connection with a Material Breach or a Material Document Defect and (B) the
amount, if any, by which the proceeds from any cash defeasance deposit exceeds
the amount described in clause (A) of this sentence, upon deposit by the related
Mortgagor of Defeasance Collateral, or cash sufficient to purchase the
Defeasance Collateral, as contemplated by the related loan documents (if
applicable), but in any event no later than the related defeasance date.
(k) In connection with any repurchase of any Early Defeasance Trust
Mortgage Loan, pursuant to or as contemplated by this Section 2.03, the Tax
Administrator shall in accordance with Section 9.02 effect a "qualified
liquidation" of the related Loan REMIC in accordance with the REMIC Provisions.
The Depositor (in the case of a Xxxxxx Trust Mortgage Loan) hereby agrees to
pay, and the related Unaffiliated Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement (in the case of a Non-Xxxxxx Trust Mortgage
Loan) is obligated to pay, all reasonable costs and expenses, including the
costs of any Opinions of Counsel, in connection with any such "qualified
liquidation" of a Loan REMIC in accordance with the REMIC Provisions.
(l) Notwithstanding anything to the contrary in this Section 2.03, the
Depositor shall not have any obligations pursuant to or as contemplated by this
Section 2.03 with respect to the 0000 X Xxxxxx Note A-1 Trust Mortgage Loan
and/or the One Alliance Center Note A-2 Trust Mortgage Loan, the Countrywide
Mortgage Loan Seller shall not have any obligations pursuant to or as
contemplated by this Section 2.03 with respect to the One Alliance Center Note
A-1 Trust Mortgage Loan and the Greenwich Mortgage Loan Seller shall not have
any obligations pursuant to or as contemplated by this Section 2.03 with respect
to the 0000 X Xxxxxx Note A-2 Trust Mortgage Loan. Each 2445 M Street Trust
Mortgage Loan Portion will be treated as a separate Trust Mortgage Loan for
purposes of determining the respective obligations of the Depositor and the
Greenwich Mortgage Loan Seller pursuant to or as contemplated by this Section
2.03. In that regard, the 0000 X Xxxxxx Note A-2 Trust Mortgage Loan is a Xxxxxx
Trust Mortgage Loan, and the 0000 X Xxxxxx Note A-1 Trust Mortgage Loan is the
only Greenwich Trust Mortgage Loan. Each One Alliance Center Trust Mortgage Loan
Portion will be treated as a separate Trust Mortgage Loan for purposes of
determining the respective obligations of the Depositor and the Countrywide
Mortgage Loan Seller pursuant to or as contemplated by this Section 2.03. In
that regard, the One Alliance Center Note A-1 Trust Mortgage Loan is a Xxxxxx
Trust Mortgage Loan, and the One Alliance Center Note A-2 Trust Mortgage Loan is
the only Countrywide Trust Mortgage Loan.
SECTION 2.04. Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's certificate of
incorporation or by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of,
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any material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Depositor's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition of
the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans
to the Trustee with any intent to hinder, delay or defraud its present or
future creditors.
(viii) The Depositor has been solvent at all relevant times prior
to, and will not be rendered insolvent by, its transfer of the Trust
Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage
Loans to the Trustee pursuant to Section 2.01(a), the value of the
Depositor's assets, either taken at their present fair saleable value or at
fair valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations of
the Depositor, and the Depositor will not be left with unreasonably small
assets or capital with which to engage in and conduct its business.
(x) The Depositor does not intend to, and does not believe that
it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature.
(xi) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
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(xii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(xiii) Except for any actions that are the express responsibility
of another party hereunder or under the Mortgage Loan Purchase Agreements,
and further except for actions that the Depositor is expressly permitted to
complete subsequent to the Closing Date, the Depositor has taken all
actions required under applicable law to effectuate the transfer of the
Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the Non-Xxxxxx Trust
Mortgage Loans to the Trust pursuant to this Agreement (and assuming that
the related Unaffiliated Mortgage Loan Seller transferred to the Depositor
good and marketable title to each Non-Xxxxxx Trust Mortgage Loan, free and
clear of all liens, claims, encumbrances and other interests), (A) the
Depositor had good and marketable title to, and was the sole owner and
holder of, each Non-Xxxxxx Trust Mortgage Loan, and (B) the Depositor has
full right and authority to sell, assign and transfer each Non-Xxxxxx Trust
Mortgage Loan, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own
benefit and the benefit of the Certificateholders, with respect to each Xxxxxx
Trust Mortgage Loan only, the representations and warranties shown on Schedule
II hereto, as of the Closing Date or such other date specified in the particular
representation and warranty, subject to the exceptions set forth on Schedule III
hereto (the headings set forth in Schedule II hereto with respect to each
representation and warranty being for convenience of reference only and in no
way limiting, expanding or otherwise affecting the scope or subject matter
thereof).
Except as expressly provided in Section 2.04(a), the Depositor does
not make any representations or warranties regarding the Non-Xxxxxx Trust
Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set
forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive
the execution and delivery of this Agreement and shall inure to the benefit of
the Persons for whose benefit they were made for so long as the Trust Fund
remains in existence. Upon discovery by any party hereto of any breach of any of
such representations, warranties and covenants, the party discovering such
breach shall give prompt written notice thereof to the other parties.
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance
of the Class V Certificates.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Additional Interest Received by the
Trust on or with respect to the ARD Trust Mortgage Loans, if any, and any
successor REO Trust Mortgage Loans with respect thereto constitute a grantor
trust for federal income tax purposes. The Trustee, by its execution and
delivery hereof, acknowledges the assignment to it of the Grantor Trust Assets,
if any, and declares that it holds and will
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hold any such assets in trust for the exclusive use and benefit of all present
and future Holders of the Class V Certificates. Concurrently with the assignment
to it of the Grantor Trust Assets, subject to Section 2.05(b), the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, to or upon the order of the Depositor, the Class V Certificates in
authorized denominations evidencing, in the aggregate, the entire beneficial
ownership of the Grantor Trust. Subject to Section 2.05(b): (i) the Class V
Certificates shall evidence the entire beneficial ownership of the Grantor
Trust; and (ii) the rights of Holders of the Class V Certificates to receive
distributions from the proceeds of the Grantor Trust Assets, and all ownership
interests of such Holders in and to such distributions, shall be as set forth in
this Agreement.
(b) Notwithstanding Section 2.05(a) or anything else to the contrary
set forth in this Agreement, if the Mortgage Pool does not, on the Closing Date,
include any ARD Trust Mortgage Loans, then: (i) there shall be no Grantor Trust;
(ii) no Class V Certificates shall be issued; (iii) insofar as, but only insofar
as, the provisions of this Agreement specifically relate to the Grantor Trust,
Grantor Trust Assets, Class V Certificates, the Class V Sub-Account, ARD
Mortgage Loans, ARD Trust Mortgage Loan and/or Additional Interest, such
provisions (other than this Section 2.05(b), the definitions of such terms set
forth in Section 1.01 and Schedule VII annexed hereto) shall, without otherwise
affecting the enforceability or validity of this Agreement with respect to any
other matters, be of no force and effect; and (iv) the parties hereto shall have
no rights or obligations with respect to the Grantor Trust, Grantor Trust
Assets, Class V Certificates, the Class V Sub-Account, ARD Mortgage Loans, ARD
Trust Mortgage Loans and/or Additional Interest.
SECTION 2.06. Acceptance of Loan REMICs by Trustee; Execution,
Authentication and Delivery of Class R-LR Certificates; Creation of Loan REMIC
Regular Interests.
(a) The Trustee hereby acknowledges the assignment to it of any assets
to be included in the Loan REMICs. Concurrently with such assignment and in
exchange therefor, subject to Section 2.06(b), (i) the Loan REMIC Regular
Interests have been issued, and (ii) pursuant to the written request of the
Depositor executed by an authorized officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the Class
R-LR Certificates in authorized denominations. Subject to Section 2.06(b): the
interests evidenced by the Class R-LR Certificates, together with the related
Loan REMIC Regular Interests, constitute the entire beneficial ownership of the
respective Loan REMICs; and (ii) the rights of the Class R-LR Certificateholders
and REMIC I (as holder of the Loan REMIC Regular Interests) to receive
distributions from the proceeds of the Early Defeasance Trust Mortgage Loans (or
any successor REO Mortgage Loans with respect thereto) in respect of the Class
R-LR Certificates and the Loan REMIC Regular Interests, respectively, and all
ownership interests evidenced or constituted by the Class R-LR Certificates and
the Loan REMIC Regular Interests, shall be as set forth in this Agreement.
(b) Notwithstanding Section 2.06(a) or anything else to the contrary
set forth in this Agreement, if the Mortgage Pool does not, on the Closing Date,
include any Early Defeasance Trust Mortgage Loans, then: (i) there shall be no
Loan REMICs; (ii) no Class R-LR Certificates and no Loan REMIC Interests shall
be issued; (iii) insofar as, but only insofar as, the provisions of this
Agreement specifically relate to Loan REMICs, Loan REMIC Interests, Class R-LR
Certificates, Excess Defeasance Deposit Proceeds and/or Early Defeasance Trust
Mortgage Loans, such provisions (other
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than this Section 2.06(b), the definitions of such terms set forth in Section
1.01 and the Trust Mortgage Loan Schedule) shall, without otherwise affecting
the enforceability or validity of this Agreement with respect to any other
matters, be of no force and effect; and (iv) the parties hereto and the
respective Mortgage Loan Sellers shall have no rights or obligations with
respect to the Loan REMICs, Loan REMIC Interests, Class R-LR Certificates,
Excess Defeasance Deposit Proceeds and/or Early Defeasance Trust Mortgage Loans.
SECTION 2.07. Conveyance of Loan REMIC Regular Interests.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Loan REMIC
Regular Interests, if any, to the Trustee for the benefit of the Holders of the
Class R-I Certificates and REMIC II as the holder of the REMIC I Regular
Interests. The Trustee acknowledges the assignment to it of the Loan REMIC
Regular Interests, if any, and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Holders of the
Class R-I Certificates and REMIC II as the holder of the REMIC I Regular
Interests.
SECTION 2.08. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in REMIC I. Concurrently with such assignment and in exchange therefor,
(a) the REMIC I Regular Interests have been issued, and (b) pursuant to the
written request of the Depositor executed by an authorized officer thereof, the
Trustee, as Certificate Registrar, has executed, and the Trustee, as
Authenticating Agent, has authenticated and delivered to or upon the order of
the Depositor, the Class R-I Certificates in authorized denominations. The
interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II (as holder of the REMIC
I Regular Interests) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Certificates and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I Certificates and the REMIC I Regular Interests, shall be as set forth in
this Agreement.
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the Class R-II
Certificates and REMIC III as the holder of the REMIC II Regular Interests. The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of all present and future Holders of the Class R-II Certificates and
REMIC III as the holder of the REMIC II Regular Interests.
SECTION 2.10. Execution, Authentication and Delivery of Class R-II
Certificates; Creation of REMIC II Regular Interests.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests and in exchange therefor, (a) the REMIC II Regular Interests have been
issued and (b) pursuant to the written
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request of the Depositor executed by an authorized officer thereof, the Trustee,
as Certificate Registrar, has executed, and the Trustee, as Authenticating
Agent, has authenticated and delivered to or upon the order of the Depositor,
the Class R-II Certificates in authorized denominations. The rights of the Class
R-II Certificateholders and REMIC III (as holder of the REMIC II Regular
Interests) to receive distributions from the proceeds of REMIC II in respect of
the Class R-II Certificates and the REMIC II Regular Interests, respectively,
and all ownership interests evidenced or constituted by the Class R-II
Certificates and the REMIC II Regular Interests, shall be as set forth in this
Agreement.
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.12. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Regular Interests and in exchange therefor, pursuant to the written request of
the Depositor executed by an officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the REMIC III
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC III. The rights of the Holders of the respective Classes of
REMIC III Certificates to receive distributions from the proceeds of REMIC III
in respect of their REMIC III Certificates, and all ownership interests
evidenced or constituted by the respective Classes of REMIC III Certificates in
such distributions, shall be as set forth in this Agreement.
SECTION 2.13. Acceptance of Loss of Value Reserve Fund by Trustee.
It is the intention of the parties hereto that any Loss of Value
Payments Received by the Trust pursuant to Section 2.03(e), together with the
Loss of Value Reserve Fund, shall collectively constitute an "outside reserve
fund" within the meaning of Treasury regulation section 1.860G-2(h). The
Trustee, by execution and delivery hereof, acknowledges the assignment to it of
the assets consisting of the Loss of Value Reserve Fund, including the amounts
held therein, and declares that it holds and will hold such assets, in
accordance with Section 3.04(e), in trust and for the benefit of the
Certificateholders, as their interests may appear. Notwithstanding anything
herein to the contrary, based on applicable law as of the date hereof, for all
income and franchise tax purposes, the Holder or Holders of the Class R-III
Certificates shall be treated and reported as the sole beneficial owner(s) of
the Loss of Value Reserve Fund.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) All of the Serviced Mortgage Loans and Administered REO Properties
are to be serviced and administered by the Master Servicer and/or the Special
Servicer hereunder. Each of the Master Servicer and the Special Servicer shall
service and administer the Serviced Mortgage Loans and Administered REO
Properties that it is obligated to service and administer pursuant to this
Agreement on behalf of the Trustee, for the benefit of the Certificateholders
(or, in the case of a Serviced Loan Combination, for the benefit of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as determined in the good faith and reasonable judgment of the
Master Servicer or the Special Servicer, as the case may be, in accordance with:
(i) any and all applicable laws; (ii) the express terms of this Agreement; (iii)
the express terms of the respective Serviced Mortgage Loans and any and all
related intercreditor, co-lender or similar agreements (including with respect
to performing the duties of the holders of the respective Serviced Mortgage
Loans thereunder (to the extent not inconsistent with this Agreement and to the
extent consistent with the Servicing Standard)); and (iv) to the extent
consistent with the foregoing, the Servicing Standard. The Master Servicer or
the Special Servicer, as applicable in accordance with this Agreement, shall
service and administer each Cross-Collateralized Group as a single Serviced
Mortgage Loan as and when necessary and appropriate consistent with the
Servicing Standard. Without limiting the foregoing and subject to Section 3.21,
(i) the Master Servicer shall service and administer all of the Performing
Serviced Mortgage Loans and shall render such services with respect to the
Specially Serviced Mortgage Loans as are specifically provided for herein, and
(ii) the Special Servicer shall service and administer each Specially Serviced
Mortgage Loan and Administered REO Property and shall render such services with
respect to Performing Serviced Mortgage Loans as are specifically provided for
herein. All references herein to the respective duties of the Master Servicer
and the Special Servicer, and to the areas in which they may exercise
discretion, shall be subject to Section 3.21.
(b) Subject to Sections 3.01(a), 3.20, 6.11 and 6.12, the Master
Servicer and the Special Servicer shall each have full power and authority,
acting alone (or, to the extent contemplated by Section 3.22 of this Agreement,
through subservicers), to do or cause to be done any and all things in
connection with the servicing and administration contemplated by Section 3.01(a)
that it may deem necessary or desirable. Without limiting the generality of the
foregoing, each of the Master Servicer and the Special Servicer, in its own
name, with respect to each of the Serviced Mortgage Loans it is obligated to
service hereunder, is authorized and empowered by the Trustee and, to the extent
provided in the related Co-Lender Agreement, each related Serviced Non-Trust
Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the
Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan
Noteholder or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Sections 3.01(a), 3.20, 6.11 and
6.12, any and all modifications, extensions, waivers, amendments or consents to
or with respect to any documents contained in the related Mortgage File; (iii)
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge or of assignment, and all other comparable instruments; and
(iv) any
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and all instruments that such party may be required to execute on behalf of the
Trustee in connection with the defeasance of a Serviced Mortgage Loan as
contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at
the written request of the Master Servicer or the Special Servicer, promptly
execute any limited powers of attorney and other documents furnished by the
Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity; or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(c) The parties hereto acknowledge that each Loan Combination is
subject to the terms and conditions of the related Co-Lender Agreement; and,
with respect to each Loan Combination, the parties hereto further recognize the
respective rights and obligations of the Trust, as holder of the related
Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan
Noteholder(s) under the related Co-Lender Agreement.
(d) With respect to any Serviced Loan Combination, in the event that
neither the related Trust Mortgage Loan nor the related REO Property (or any
interest therein) is an asset of the Trust Fund and, except as contemplated in
the second paragraph of this Section 3.01(d), in accordance with the related
Co-Lender Agreement, the servicing and administration of such Serviced Loan
Combination and any related REO Property are to be governed by a separate
servicing agreement and not by this Agreement, then (either (i) with the consent
or at the request of the holders of each Mortgage Loan comprising such Serviced
Loan Combination or (ii) if expressly provided for in the related Co-Lender
Agreement) the Master Servicer and, if such Serviced Loan Combination is then
being specially serviced hereunder or the related Mortgaged Property has become
an REO Property, the Special Servicer, shall continue to act in such capacities
under such separate servicing agreement; provided that such separate servicing
agreement shall be reasonably acceptable to the Master Servicer and/or the
Special Servicer, as the case may be, and shall contain servicing and
administration, limitation of liability, indemnification and servicing
compensation provisions substantially similar to the corresponding provisions of
this Agreement, except for the fact that such Serviced Loan Combination and the
related Mortgaged Property shall be the sole assets serviced and administered
thereunder and the sole source of funds thereunder.
Further, with respect to any Serviced Loan Combination, if at any time
neither the related Trust Mortgage Loan nor any related REO Property (or any
interest therein) is an asset of the Trust Fund, and if a separate servicing
agreement with respect to such Serviced Loan Combination or any related REO
Property, as applicable, has not been entered into as contemplated by the
related Co-Lender Agreement and the prior paragraph (for whatever reason,
including the failure to obtain any rating agency confirmation required in
connection therewith pursuant to the related Co-Lender Agreement), and
notwithstanding that neither the related Trust Mortgage Loan nor any related REO
Property (or any interest therein) is an asset of the Trust Fund, then, unless
directed otherwise by the then current holders of the Mortgage Notes comprising
such Serviced Loan Combination, the Master Servicer and, if applicable, the
Special Servicer shall continue to service and administer such Serviced Loan
Combination and/or any related REO Property, for the benefit of the respective
holders of such Serviced
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Loan Combination, under this Agreement as if such Serviced Loan Combination or
any related REO Property were the sole assets subject hereto, with certain
references in this Agreement applicable to the Trust, the Trustee, the
Certificates, the Certificateholders (or any subgroup thereof) or any
representative of any such Certificateholders, all being construed to refer to
such similar terms as are applicable to the then current holder of the Mortgage
Note for the related Serviced Combination Trust Mortgage Loan.
(e) The Master Servicer shall use efforts consistent with the
Servicing Standard to have prepared, executed (with the cooperation of the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the related
Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan) in obtaining requisite signatures, if applicable) and delivered by the
applicable party (and included in the Servicing File), not later than the later
of (i) 30 days following the Master Servicer's receipt of the subject franchisor
comfort letter, guaranty of payment or letter of credit and (ii) the expiration
of the period that may be required for such transfer or assignment pursuant to
the terms of the applicable franchisor comfort letter, guaranty of payment or
letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured
by a hospitality property (as identified on Schedule VI hereto) (and with
respect to which a franchise agreement constitutes part of the related Mortgage
File on the Closing Date), any original transfer or assignment documents
necessary to transfer or assign to the Trustee any rights under the related
franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan
that has a related guaranty or letter of credit that constitutes part of the
related Mortgage File on the Closing Date, any original transfer or assignment
documents necessary to transfer or assign to the Trustee any rights under the
related guaranty of payment or letter of credit. In the event, with respect to a
Serviced Trust Mortgage Loan with a related letter of credit, it is determined
by the Master Servicer that a draw under such letter of credit has become
necessary under the terms thereof prior to the assignment under clause (B) of
the preceding sentence having been effected, the Master Servicer shall direct
(in writing) the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the
related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust
Mortgage Loan) to make such draw or to cause such draw to be made on behalf of
the Trustee, and, the Depositor will, and each Unaffiliated Mortgage Loan Seller
will be obligated under the related Mortgage Loan Purchase Agreement to, use its
best efforts to cause such draw to be made; provided that neither the Depositor
nor any Unaffiliated Mortgage Loan Seller shall have any liability in connection
with the determination to make, or the making of, such draw (other than to remit
the proceeds of such draw to the Master Servicer).
(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and
to each other under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or, except as
set forth in this Agreement, agent.
(g) The parties hereto acknowledge that each Outside Serviced Trust
Mortgage Loan (and, if such Outside Serviced Trust Mortgage Loan is part of a
Loan Combination, the related Outside Serviced Non-Trust Mortgage Loan(s)) will
primarily be serviced and administered in accordance with the related Outside
Servicing Agreement, and the servicing and administrative duties of the parties
hereto with respect to each Outside Serviced Trust Mortgage Loan, any successor
REO Trust Mortgage Loan with respect thereto and any related Outside
Administered REO Property shall be limited to those expressly set forth herein.
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SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer and the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Serviced Mortgage Loans it is obligated to service
hereunder and shall follow such collection procedures as are consistent with the
Servicing Standard; provided, however, that neither the Master Servicer nor the
Special Servicer shall, with respect to any Serviced Mortgage Loan that
constitutes an ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection), unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
ARD Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, necessary, appropriate and consistent with the Servicing Standard or
(ii) all other amounts due under such ARD Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest accrued on Advances. The
Special Servicer shall ensure that, with respect to Specially Serviced Mortgage
Loans, the Mortgagors make payments directly to the Master Servicer; provided
that, in the event the Special Servicer receives a payment that should have been
made directly to the Master Servicer, the Special Servicer shall promptly
forward such payment to the Master Servicer. Upon receipt of any such payment
with respect to a Specially Serviced Mortgage Loan, the Master Servicer shall
promptly notify the Special Servicer, and the Special Servicer shall direct the
Master Servicer as to the proper posting of such payment. Consistent with the
foregoing, the Special Servicer, with regard to a Specially Serviced Mortgage
Loan, or the Master Servicer, with regard to a Performing Serviced Mortgage
Loan, may waive or defer any Default Charges in connection with collecting any
late payment on a Serviced Mortgage Loan; provided that without the consent of
the Special Servicer in the case of a proposed waiver by the Master Servicer, no
such waiver or deferral may be made by the Master Servicer pursuant to this
Section 3.02 if any Advance has been made as to such delinquent payment (to the
extent such Default charges are necessary to offset Advance Interest on such
Advance).
(b) All amounts Received by the Trust with respect to any
Cross-Collateralized Group in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied by
the Master Servicer among the Trust Mortgage Loans constituting such
Cross-Collateralized Group in accordance with the express provisions of the
related loan documents and, in the absence of such express provisions or to the
extent that such payments and other collections may be applied at the discretion
of the lender, on a pro rata basis in accordance with the respective amounts
then "due and owing" as to each such Mortgage Loan. Except as otherwise
contemplated by the following paragraphs in this Section 3.02(b), all amounts
Received by the Trust in respect of or allocable to any particular Trust
Mortgage Loan (whether or not such Trust Mortgage Loan constitutes part of a
Cross-Collateralized Group) in the form of payments from Mortgagors, Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds shall be applied to
amounts due and owing under such Trust Mortgage Loan (including for principal
and accrued and unpaid interest) in accordance with the express provisions of
the related Mortgage Note, the related Mortgage and/or any related loan
agreement and, in the absence of such express provisions or to the extent that
such payments and other collections may be applied at the discretion of the
lender, as follows: first, as a recovery of any related unpaid servicing
expenses and unreimbursed Servicing Advances; second, as a recovery of accrued
and unpaid interest on such Trust Mortgage Loan at the related Mortgage Rate
(net, in the case of an Outside
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Serviced Trust Mortgage Loan, of related Outside Servicing Fees) to, but not
including, the date of receipt (or, in the case of a full Monthly Payment from
any Mortgagor, through the related Due Date), exclusive, however, in the case of
an ARD Trust Mortgage Loan after its Anticipated Repayment Date, of any such
accrued and unpaid interest that constitutes Additional Interest; third, as a
recovery of principal of such Trust Mortgage Loan then due and owing, including
by reason of acceleration of such Trust Mortgage Loan following a default
thereunder (or, if a Liquidation Event has occurred in respect of such Trust
Mortgage Loan, as a recovery of principal to the extent of its entire remaining
unpaid principal balance); fourth, unless a Liquidation Event has occurred with
respect to such Trust Mortgage Loan, as a recovery of amounts to be currently
applied to the payment of, or escrowed for the future payment of, real estate
taxes, assessments, insurance premiums (including premiums on any Environmental
Insurance Policy), ground rents (if applicable) and similar items; fifth, unless
a Liquidation Event has occurred with respect to such Trust Mortgage Loan, as a
recovery of Reserve Funds to the extent then required to be held in escrow;
sixth, as a recovery of any Prepayment Consideration then due and owing under
such Trust Mortgage Loan; seventh, as a recovery of any Default Charges then due
and owing under such Trust Mortgage Loan; eighth, as a recovery of any
assumption fees, modification fees and extension fees then due and owing under
such Trust Mortgage Loan; ninth, as a recovery of any other amounts then due and
owing under such Trust Mortgage Loan (other than remaining unpaid principal and,
in the case of an ARD Trust Mortgage Loan after its Anticipated Repayment Date,
other than Additional Interest); tenth, as a recovery of any remaining principal
of such Trust Mortgage Loan to the extent of its entire remaining unpaid
principal balance; and, eleventh, in the case of an ARD Trust Mortgage Loan
after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Additional Interest on such ARD Trust Mortgage Loan to but not including the
date of receipt; provided that, if one or more Advances previously made in
respect of a Trust Mortgage Loan have been reimbursed out of general collections
of principal on the Mortgage Pool as one or more Nonrecoverable Advances, then
collections in respect of such Trust Mortgage Loan available for application
pursuant to clauses second through eleventh of this sentence shall instead be
applied in the following order--(i) as a recovery of accrued and unpaid interest
on, and principal of, such Trust Mortgage Loan, to the extent of any outstanding
P&I Advances and unpaid Master Servicing Fees in respect of such Trust Mortgage
Loan, (ii) as a recovery of the item(s) for which such previously reimbursed
Nonrecoverable Advance(s) were made (together with, but only if a Liquidation
Event has occurred with respect to such Trust Mortgage Loan, any interest on
such previously reimbursed Nonrecoverable Advance(s) that was also paid out of
general collections of principal on the Mortgage Pool), and (iii) in accordance
with clauses second through eleventh of this sentence (taking into account the
applications pursuant to clauses (i) and (ii) of this proviso).
Subject to the last paragraph of this Section 3.02(b), all amounts
received with respect to any Serviced Loan Combination shall be applied to
amounts due and owing under the Mortgage Loans comprising such Loan Combination
(including for principal and accrued and unpaid interest) in accordance with the
express provisions of the related Mortgage Notes, the related Mortgage, the
related loan agreement, if any, and the related Co-Lender Agreement.
Subject to the last paragraph of this Section 3.02(b), all amounts
Received by the Trust with respect to an Outside Serviced Trust Mortgage Loan
shall be allocated among interest, principal and/or prepayment consideration due
thereon in accordance with the terms of any distribution date statement or
servicer report received from the related Outside Servicers with respect to such
Outside Serviced Trust Mortgage Loan and, in the absence of any such statement
or report, in accordance with the related Co-Lender Agreement and, in the
absence of any allocation in the related Co-Lender
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Agreement, in accordance with the first paragraph of this Section 3.02(b). Any
nonrecoverable payment made by an Outside Servicer to cover interest shortfalls
incurred with respect to an Outside Serviced Trust Mortgage Loan by reason of a
Principal Prepayment or other early collection of principal being applied to
such Outside Serviced Trust Mortgage Loan prior to the related Due Date during
the relevant Underlying Collection Period, will be treated for purposes of this
Agreement as if it was a payment of interest by the related Mortgagor.
Notwithstanding the foregoing, Loss of Value Payments shall not be
applied in accordance with the foregoing provisions of this Section 3.02(b)
unless and until such amounts are transferred to the Pool Custodial Account, and
deemed to constitute Liquidation Proceeds in respect of a particular Trust
Mortgage Loan, in accordance with Section 3.05(e); and Liquidation Proceeds
resulting from any purchase or repurchase out of the Trust Fund of, or any
application of Loss of Value Payments to, any Trust Mortgage Loan that is part
of a Loan Combination shall be applied in accordance with the provisions of the
first paragraph of this Section 3.02(b).
(c) Promptly following the Closing Date, in the case of each Outside
Serviced Trust Mortgage Loan, the Trustee shall send written notice,
substantially in the form of Exhibit S hereto, to the related Outside Master
Servicer and Outside Trustee, stating that, as of the Closing Date, the Trustee
is the holder of such Outside Serviced Trust Mortgage Loan and directing the
related Outside Master Servicer to remit to the Master Servicer all amounts
payable to, and to forward, deliver or otherwise make available, as the case may
be, to the Master Servicer all reports, statements, documents, communications
and other information that are to be forwarded, delivered or otherwise made
available to, the holder of the subject Outside Serviced Trust Mortgage Loan
under the related Co-Lender Agreement and the related Outside Servicing
Agreement. The Master Servicer shall, within one (1) Business Day of receipt
thereof, deposit into the Pool Custodial Account all amounts received by it from
any Outside Servicer or any other party under the related Outside Servicing
Agreement and/or the related Co-Lender Agreement with respect to any Outside
Serviced Trust Mortgage Loan, the related Mortgaged Property or any related REO
Property. In connection with the foregoing, the Master Servicer shall provide
each Outside Master Servicer wiring instructions for remittances to the Master
Servicer. In the event that, during any calendar month, the Master Servicer
fails to so receive any amounts, including (if applicable) advances, due to the
holder of an Outside Serviced Trust Mortgage Loan under the related Co-Lender
Agreement and/or the related Outside Servicing Agreement by the end of the
related Collection Period ending in such calendar month, then the Master
Servicer shall promptly (i) notify the related Outside Master Servicer and any
Outside Trustee under the related Outside Servicing Agreement that such amounts
due with respect to the subject Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto have not been received
(specifying the amount of such deficiency), (ii) make inquiry of the related
Outside Master Servicer and any Outside Trustee under the related Outside
Servicing Agreement (and, to the extent learned, inform the Trustee) as to the
reason that such amounts have not been timely received, (iii) as and to the
extent appropriate, request that the related Outside Master Servicer promptly
remedy such failure to make a payment or an advance, as the case may be, and
(iv) make a P&I Advance with respect to such amounts as and if required by the
terms of this Agreement in accordance with Section 4.03. Further, in accordance
with Section 4.03, in the event the Master Servicer fails to make such P&I
Advance with respect to any Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, then the Trustee or, if
it fails to do so, any Fiscal Agent, shall make such P&I Advance.
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SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain one or more accounts (the "Servicing Accounts"), in which
all related Escrow Payments shall be deposited and retained; provided that, in
the case of a Serviced Loan Combination, if the related Servicing Account
includes funds with respect to any other Serviced Mortgage Loan, then the Master
Servicer shall maintain a separate sub-account of such Servicing Account that
relates solely to such Serviced Loan Combination. Subject to the terms of the
related loan documents, each Servicing Account shall be an Eligible Account.
Withdrawals of amounts so collected from a Servicing Account may be made (in
each case, to the extent of amounts on deposit therein in respect of the related
Serviced Mortgage Loan or, in the case of clauses (iv) and (v) below, to the
extent of interest or other income earned on such amounts) only for the
following purposes: (i) consistent with the related loan documents, to effect
the payment of real estate taxes, assessments, insurance premiums (including
premiums on any Environmental Insurance Policy), ground rents (if applicable)
and comparable items in respect of the respective Mortgaged Properties; (ii)
insofar as the particular Escrow Payment represents a late payment that was
intended to cover an item described in the immediately preceding clause (i) for
which a Servicing Advance was made, to reimburse the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent, as applicable, for such
Servicing Advance; (iii) to refund to Mortgagors any sums as may be determined
to be overages; (iv) following an event of default under the related Serviced
Mortgage Loan, for such other purposes as are consistent with the related loan
documents, applicable law and the Servicing Standard; (v) to pay interest, if
required and as described below, to Mortgagors on balances in such Servicing
Account; (vi) to pay the Master Servicer interest and investment income on
balances in such Servicing Account as described in Section 3.06, if and to the
extent not required by law or the terms of the related loan documents to be paid
to the Mortgagor; or (vii) to clear and terminate such Servicing Account at the
termination of this Agreement in accordance with Section 9.01. To the extent
permitted by law or the applicable loan documents, funds in the Servicing
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06. The Master Servicer shall pay or cause to be paid to
the Mortgagors interest, if any, earned on the investment of funds in the
related Servicing Accounts, if required by law or the terms of the related
Serviced Mortgage Loan. If the Master Servicer shall deposit in a Servicing
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced Mortgage
Loan, (i) maintain accurate records with respect to the related Mortgaged
Property reflecting the status of real estate taxes, assessments and other
similar items that are or may become a lien thereon and the status of insurance
premiums and any ground rents payable in respect thereof and (ii) use reasonable
efforts to obtain, from time to time, all bills for (or otherwise confirm) the
payment of such items (including renewal premiums) and, if the subject Serviced
Mortgage Loan requires the related Mortgagor to escrow for such items, shall
effect payment thereof prior to the applicable penalty or termination date. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Serviced Mortgage Loan (or, if such Serviced Mortgage Loan does not require the
related Mortgagor to escrow for the payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and similar items, the Master
Servicer shall use reasonable efforts consistent with the Servicing Standard to
cause the related Mortgagor to comply with the requirement of the related
Mortgage that the Mortgagor make payments
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in respect of such items at the time they first become due and, in any event,
prior to the institution of foreclosure or similar proceedings with respect to
the related Mortgaged Property for nonpayment of such items). Subject to Section
3.11(h), the Master Servicer shall timely make a Servicing Advance to cover any
such item which is not so paid, including any penalties or other charges arising
from the Mortgagor's failure to timely pay such items.
(c) The Master Servicer shall, as to each and every Serviced Mortgage
Loan, make a Servicing Advance with respect to the related Mortgaged Property in
an amount equal to all such funds as are necessary for the purpose of effecting
the payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor (or any related
guarantor or party entitled to exercise cure rights) has failed to pay such item
on a timely basis. All such Servicing Advances shall be reimbursable in the
first instance from related payments by or on behalf of the Mortgagors, and
further as provided in Section 3.05(a) and/or Section 3.05A. No costs incurred
by the Master Servicer in effecting the payment of real estate taxes,
assessments and, if applicable, ground rents on or in respect of the Mortgaged
Properties shall, for purposes of this Agreement, including the Trustee's
calculation of monthly distributions to Certificateholders, be added to the
unpaid Stated Principal Balances of the related Serviced Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit. The foregoing
shall in no way limit the Master Servicer's ability to charge and collect from
the Mortgagor such costs together with interest thereon.
(d) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all related Reserve Funds, if any, shall be deposited and
retained; provided that, in the case of a Serviced Loan Combination, if the
related Reserve Account includes funds with respect to any other Mortgage Loan,
then the Master Servicer shall maintain a separate sub-account of such Reserve
Account that relates solely to such Serviced Loan Combination. Withdrawals of
amounts so deposited may be made (i) for the specific purposes for which the
particular Reserve Funds were delivered, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any other
agreement with the related Mortgagor governing such Reserve Funds, (ii) to pay
the Master Servicer interest and investment income earned on amounts in the
Reserve Accounts as described below, and (iii) following an event of default
under the related Serviced Mortgage Loan, for such other purposes as are
consistent with the related loan documents, applicable law and the Servicing
Standard. To the extent permitted in the applicable loan documents, funds in the
Reserve Accounts may be invested in Permitted Investments in accordance with the
provisions of Section 3.06. Subject to the related loan documents, all Reserve
Accounts shall be Eligible Accounts. Consistent with the Servicing Standard, the
Master Servicer may waive or extend the date set forth in any agreement
governing Reserve Funds by which any required repairs, capital improvements
and/or environmental remediation at the related Mortgaged Property must be
completed; provided that any waiver, any extension for more than 120 days and
any subsequent extension may only be granted with the consent of the Special
Servicer.
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SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account,
Collection Account, Interest Reserve Account, Excess Liquidation Proceeds
Account and Loss of Value Reserve Fund.
(a) The Master Servicer shall establish and maintain one or more
separate, segregated accounts (collectively, the "Pool Custodial Account"), in
which the amounts described in clauses (i) through (xi) below (which shall not
include any amounts allocable to the Non-Trust Mortgage Loans) shall be
deposited and held on behalf of the Trustee in trust for the sole benefit of the
Certificateholders. The Pool Custodial Account shall be an Eligible Account. The
Master Servicer shall deposit or cause to be deposited in the Pool Custodial
Account, within one (1) Business Day of receipt (in the case of payments by
Mortgagors or other collections on the Trust Mortgage Loans) or as otherwise
required hereunder, the following payments and collections received (including
amounts Received by the Trust with respect to the Outside Serviced Trust
Mortgage Loans and/or any successor REO Trust Mortgage Loans with respect
thereto) or made by the Master Servicer or on its behalf subsequent to the
Cut-off Date (other than in respect of principal and interest on the Trust
Mortgage Loans due and payable on or before the Cut-off Date, which amounts
shall be delivered promptly to the Depositor or its designee, with negotiable
instruments endorsed as necessary and appropriate without recourse, and other
than amounts required to be deposited in the Defeasance Deposit Account), or any
of the following payments (other than Principal Prepayments) received by it on
or prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal of the Serviced Trust
Mortgage Loans, including Principal Prepayments, and regardless of whether
those payments are made by the related Mortgagor, any related guarantor or
any party exercising cure rights hereunder or under any related co-lender,
intercreditor or similar agreement, out of any related Reserve Funds
maintained for such purpose, out of collections on any related Defeasance
Collateral or from any other source;
(ii) all payments on account of interest on the Serviced Trust
Mortgage Loans, including Default Interest and Additional Interest, and
regardless of whether those payments are made by the related Mortgagor, any
related guarantor or any party exercising cure rights hereunder or under
any related co-lender, intercreditor or similar agreement, out of any
related Reserve Funds maintained for such purpose, out of collections on
any related Defeasance Collateral or from any other source;
(iii) all Prepayment Consideration and late payment charges
Received by the Trust in respect of any Trust Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds Received by the Trust in respect of any Trust Mortgage
Loan or, except to the extent such proceeds are to first be deposited in an
REO Account, any REO Property;
(v) any amounts representing a reimbursement, payment and/or
contribution due and owing to the Trust from any Non-Trust Mortgage Loan
Noteholder in accordance with the related Co-Lender Agreement;
(vi) all remittances, including (if applicable) advances, to the
Trust under the related Outside Servicing Agreement and/or the related
Co-Lender Agreement with respect to
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each Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto;
(vii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Pool Custodial Account;
(viii) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses on the Mortgage Pool resulting from a deductible clause in a
blanket or master force placed hazard insurance policy;
(ix) any amounts required to be transferred from the Loss of
Value Reserve Fund pursuant to Section 3.05(e), any Loan Combination
Custodial Account pursuant to Section 3.05A or the Pool REO Account
pursuant to Section 3.16(c);
(x) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor with respect to a Serviced Trust Mortgage Loan
specifically to cover items for which a Servicing Advance has been made;
and
(xi) the Initial Deposits, if any;
provided that any amounts described in clauses (i) through (iv), (viii) and (x)
above that relate to a Serviced Combination Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto (other than Liquidation Proceeds
derived from the Permitted Purchase of such Trust Mortgage Loan or the Trust's
interest in any related REO Property) shall be deposited in the applicable Loan
Combination Custodial Account, and, in any such case, shall thereafter be
transferred to the Pool Custodial Account as provided in Section 3.05A, together
with any other amounts required to be transferred from such Loan Combination
Custodial Account to the Pool Custodial Account from time to time pursuant to
Section 3.05A.
The foregoing requirements for deposit in the Pool Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees (other than
Prepayment Consideration) not expressly referred to in the prior paragraph need
not be deposited by the Master Servicer in the Pool Custodial Account. If the
Master Servicer shall deposit in the Pool Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Pool Custodial Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional special servicing compensation in accordance with
Section 3.11(d), all assumption fees and assumption application fees (or the
applicable portions thereof), and other transaction fees received by the Master
Servicer to which the Special Servicer is entitled pursuant to such section upon
receipt of a written statement (on which the Master Servicer is entitled to
rely) of a Servicing Officer of the Special Servicer describing the item and
amount (unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). The Pool Custodial Account shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage-backed
securities of other series and the other accounts of the Master Servicer.
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Upon receipt of any of the amounts described in clauses (i) through
(v) and (x) of the second preceding paragraph with respect to any Serviced Trust
Mortgage Loan, the Special Servicer shall promptly, but in no event later than
two (2) Business Days after receipt, remit such amounts to the Master Servicer
for deposit into the Pool Custodial Account in accordance with the second
preceding paragraph (or, if applicable, in the case of a Serviced Combination
Trust Mortgage Loan, into the applicable Loan Combination Custodial Account in
accordance with Section 3.04A(a) and the proviso to the second preceding
paragraph), unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement or other appropriate reason. With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an Administered REO Property (other than an Administered REO Property
that relates to a Serviced Loan Combination) shall be deposited by the Special
Servicer into the Pool REO Account and thereafter remitted to the Master
Servicer for deposit into the Pool Custodial Account as and to the extent
provided in Section 3.16(c).
If and when any Mortgagor under any Defeasance Mortgage Loan that is
also a Serviced Mortgage Loan elects to defease all or any part of its Serviced
Mortgage Loan and, pursuant to the provisions of the related loan documents,
delivers cash to the Master Servicer to purchase the required Defeasance
Collateral, the Master Servicer shall establish and maintain one or more
separate segregated accounts (collectively, the "Defeasance Deposit Account"),
in which the Master Servicer shall deposit such cash within one (1) Business Day
of receipt by the Master Servicer. The Master Servicer shall retain such cash in
the Defeasance Deposit Account pending its prompt application to purchase
Defeasance Collateral. The Master Servicer shall hold such cash and maintain the
Defeasance Deposit Account on behalf of the Trustee and, in the case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), to secure payment on the related Defeasance Mortgage Loan. The
Defeasance Deposit Account shall be an Eligible Account and may be a sub-account
of the Pool Custodial Account. To the extent permitted by law or the applicable
Defeasance Mortgage Loan, prior to the purchase of Defeasance Collateral, funds
in the Defeasance Deposit Account may be invested only in Permitted Investments
in accordance with the provisions of Section 3.06. The Master Servicer shall pay
or cause to be paid to the related Mortgagor(s) interest, if any, earned on the
investment of funds in the Defeasance Deposit Account, if required by law or the
terms of the related Defeasance Mortgage Loan(s). Notwithstanding that the
Defeasance Deposit Account may be a sub-account of the Pool Custodial Account
for reasons of administrative convenience, the Defeasance Deposit Account and
the Pool Custodial Account shall, for all purposes of this Agreement (including
the obligations and responsibilities of the Master Servicer hereunder), be
considered to be and shall be required to be treated as, separate and distinct
accounts. The Master Servicer shall indemnify and hold harmless the Trust Fund
against any losses arising out of the failure by the Master Servicer to perform
its duties and obligations hereunder as if such accounts were separate accounts.
The provisions of the prior two (2) sentences shall survive any resignation or
removal of the Master Servicer and appointment of a successor master servicer.
Notwithstanding the foregoing, in the event that the Master Servicer
receives cash to purchase Defeasance Collateral for any Early Defeasance Trust
Mortgage Loan that the Depositor or the related Unaffiliated Mortgage Loan
Seller, as applicable, is required to repurchase pursuant to or as otherwise
contemplated by Section 2.03(j), the Master Servicer shall retain such cash in
the Defeasance
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Deposit Account on behalf of the Trust Fund until the Depositor or the related
Unaffiliated Mortgage Loan Seller, as applicable, tenders the full Purchase
Price in connection with such repurchase and shall, on the date of such
repurchase, transfer such cash to the Depositor or the related Unaffiliated
Mortgage Loan Seller, as applicable.
(b) The Trustee shall establish and maintain one or more separate,
segregated trust accounts (collectively, the "Collection Account") to be held in
trust for the sole benefit of the Certificateholders. Each account that
constitutes the Collection Account shall be an Eligible Account. Subject to
Section 2.05(b), the Trustee shall establish and maintain, on a book-entry
basis, the "Class V Sub-Account", which sub-account shall be deemed to be held
in trust for the benefit of the Holders of the Class V Certificates. The Master
Servicer shall deliver to the Trustee each month on or before the Trust Master
Servicer Remittance Date therein, for deposit in the Collection Account, an
aggregate amount of immediately available funds equal to the Master Servicer
Remittance Amount for such Trust Master Servicer Remittance Date, together with,
in the case of the Final Distribution Date, any additional amounts contemplated
by Section 9.01 and any Loss of Value Payments contemplated by Section 3.05(e).
Immediately upon deposit of the Master Servicer Remittance Amount for any Trust
Master Servicer Remittance Date into the Collection Account, subject to Section
2.05(b), any portion thereof that represents Additional Interest shall be deemed
to have been deposited into the Class V Sub-Account.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Collection Account:
(i) any P&I Advances required to be made by the Master Servicer
in accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls.
The Trustee shall, upon receipt, deposit in the Collection Account any
and all amounts received by it that are required by the terms of this Agreement
to be deposited therein. In addition, as and when required pursuant to Section
3.06, the Trustee shall (in all cases prior to distributions on the Certificates
being made on the related Distribution Date) deposit in the Collection Account
any amounts required to be so deposited by the Trustee pursuant to Section 3.06
in connection with losses incurred with respect to Permitted Investments of
funds held in the Collection Account.
In the event that the Master Servicer fails, on any Trust Master
Servicer Remittance Date, to remit to the Trustee any amount(s) required to be
so remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Trust
Master Servicer Remittance Date, to but not including the related Distribution
Date.
On the Trust Master Servicer Remittance Date in March of each year
(commencing in March 2008), the Trustee shall transfer from the Interest Reserve
Account to the Collection Account all Interest Reserve Amounts then on deposit
in the Interest Reserve Account with respect to the Interest Reserve Mortgage
Loans and any Interest Reserve REO Mortgage Loans.
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As and when required pursuant to Section 3.05(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Collection
Account.
(c) The Trustee shall establish and maintain one or more separate,
segregated accounts (collectively, the "Interest Reserve Account"), to be held
in trust for the sole benefit of the Certificateholders, for purposes of holding
the Interest Reserve Amounts in respect of the Interest Reserve Mortgage Loans
and any Interest Reserve REO Mortgage Loans. Each account that constitutes the
Interest Reserve Account shall be an Eligible Account. On each Distribution Date
in February and, during a year that is not a leap year, in January, commencing
in February 2008, prior to any distributions being made in respect of the
Certificates on the subject Distribution Date, the Trustee shall withdraw from
the Collection Account and deposit in the Interest Reserve Account with respect
to each Interest Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan,
an amount equal to the Interest Reserve Amount, if any, in respect of such
Mortgage Loan or REO Mortgage Loan, as the case may be, for such Distribution
Date; provided that no such transfer of funds shall occur if the subject
Distribution Date is the Final Distribution Date. In addition, as and when
required pursuant to Section 3.06, the Trustee shall (in any event prior to any
distributions on the Certificates and any transfers to the Collection Account on
or before the related Distribution Date) deposit in the Interest Reserve Account
any amounts required to be so deposited by the Trustee pursuant to Section 3.06
in connection with losses incurred with respect to Permitted Investments of
funds held in the Interest Reserve Account. Subject to the next paragraph, the
Interest Reserve Account may be a sub-account of the Collection Account.
Notwithstanding that the Interest Reserve Account may be a sub-account
of the Collection Account for reasons of administrative convenience, the
Interest Reserve Account and the Collection Account shall, for all purposes of
this Agreement (including the obligations and responsibilities of the Trustee
hereunder), be considered to be and shall be required to be treated as, separate
and distinct accounts. The Trustee shall indemnify and hold harmless the Trust
Fund against any losses arising out of the failure by the Trustee to perform its
duties and obligations hereunder as if such accounts were separate accounts. The
provisions of this paragraph shall survive any resignation or removal of the
Trustee and appointment of a successor trustee.
(d) If any Excess Liquidation Proceeds are received on the Mortgage
Pool, the Trustee shall establish and maintain one or more separate, segregated
accounts (collectively, the "Excess Liquidation Proceeds Account") to be held in
trust for the sole benefit of the Certificateholders, for purposes of holding
such Excess Liquidation Proceeds. Each account that constitutes the Excess
Liquidation Proceeds Account shall be an Eligible Account. On each Trust Master
Servicer Remittance Date, the Master Servicer shall withdraw from the Pool
Custodial Account and remit to the Trustee for deposit in the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received with respect to the
Mortgage Pool during the related Collection Period ending in the calendar month
in which such Trust Master Servicer Remittance Date occurs. In addition, as and
when required pursuant to Section 3.06, the Trustee shall (in any event prior to
any transfers to the Collection Account on or before the related Distribution
Date) deposit in the Excess Liquidation Proceeds Account any amounts required to
be so deposited by the Trustee pursuant to Section 3.06 in connection with
losses incurred with respect to Permitted Investments of funds held in the
Excess Liquidation Proceeds Account. Subject to the next paragraph, the Excess
Liquidation Proceeds Account may be a sub-account of the Collection Account.
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Notwithstanding that the Excess Liquidation Proceeds Account may be a
sub-account of the Collection Account for reasons of administrative convenience,
the Excess Liquidation Proceeds Account and the Collection Account shall, for
all purposes of this Agreement (including the obligations and responsibilities
of the Trustee hereunder), be considered to be and shall be required to be
treated as, separate and distinct accounts. The Trustee shall indemnify and hold
harmless the Trust Fund against any losses arising out of the failure by the
Trustee to perform its duties and obligations hereunder as if such accounts were
separate accounts. The provisions of this paragraph shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
(e) If any Loss of Value Payments are received in connection with a
Material Document Defect or Material Breach, as the case may be, pursuant to or
as contemplated by Section 2.03(e), the Trustee shall establish and maintain one
or more non-interest bearing separate, segregated accounts (collectively, the
"Loss of Value Reserve Fund") to be held in trust for the sole benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account. The Trustee shall, upon receipt, deposit in the Loss of Value Reserve
Fund all Loss of Value Payments received by it.
(f) Funds (other than the Initial Deposits) in the Pool Custodial
Account, the Collection Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. Funds in the Loss of Value
Reserve Fund shall remain uninvested. The Master Servicer shall give notice to
the Trustee, the Special Servicer and the Rating Agencies of the location of the
Pool Custodial Account as of the Closing Date and of the new location of the
Pool Custodial Account prior to any change thereof. As of the Closing Date, the
Collection Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account shall be located at the Trustee's Corporate Trust Office. The
Trustee shall give notice to the Master Servicer, the Special Servicer and the
Rating Agencies of any change in the location of the Collection Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account prior to any
change thereof.
SECTION 3.04A. Loan Combination Custodial Accounts for Serviced Loan
Combinations.
(a) With respect to each Serviced Loan Combination, the Master
Servicer shall establish and maintain one or more separate, segregated accounts
(collectively, with respect to such Serviced Loan Combination, the related "Loan
Combination Custodial Account") in which the amounts described in clauses (i)
through (ix) below, insofar as they are related to one or more Mortgage Loans
included in such Serviced Loan Combination, shall be deposited and held in trust
for the sole benefit of the holders of such Mortgage Loans, as their interests
may appear; provided that, subject to the last paragraph of this Section
3.04A(a), each Loan Combination Custodial Account may be a sub-account of the
Pool Custodial Account. Each Loan Combination Custodial Account shall be an
Eligible Account or, subject to the last paragraph of this Section 3.04A(a), a
sub-account of an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in each Loan Combination Custodial Account, within one (1)
Business Day of receipt (in the case of payments or other collections on the
related Serviced Loan Combination) or as otherwise required hereunder, the
following payments and collections received or made by the Master Servicer or on
its behalf with respect to the related Serviced Loan Combination subsequent to
the Cut-off Date (other than in respect of principal and interest on such
Serviced Loan Combination due and payable on or before the Cut-off Date, which
payments shall be
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held pursuant to the terms of the related Co-Lender Agreement, and other than
amounts required to be deposited in the Defeasance Deposit Account):
(i) all payments on account of principal of the related Serviced
Loan Combination, including Principal Prepayments, and regardless of
whether those payments are made by the related Mortgagor, any related
guarantor or any party exercising any cure rights hereunder or under the
related Co-Lender Agreement or any related mezzanine intercreditor
agreement, out of any related Reserve Funds maintained for such purpose,
out of collections on any related Defeasance Collateral or from any other
source;
(ii) all payments on account of interest on the related Serviced
Loan Combination, including Default Interest and Additional Interest, and
regardless of whether those payments are made by the related Mortgagor, any
related guarantor, or any party exercising any cure rights hereunder or
under the related Co-Lender Agreement or any related mezzanine
intercreditor agreement, out of any related Reserve Funds maintained for
such purpose, out of collections on any related Defeasance Collateral or
from any other source;
(iii) all Prepayment Consideration and/or late payment charges
received in respect of the related Serviced Loan Combination;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the related Serviced Loan
Combination or, except to the extent such proceeds are to first be
deposited in a Loan Combination REO Account, any related Administered REO
Property;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in such Loan Combination Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses with respect to the related Serviced Loan Combination resulting from
a deductible clause in a blanket or master force placed hazard insurance
policy;
(vii) any amounts required to be transferred from the Loan
Combination REO Account established with respect to the related Serviced
Loan Combination pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the related Serviced
Loan Combination specifically to cover items for which a Servicing Advance
has been made; and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from any related
Non-Trust Mortgage Loan Noteholder in accordance with the related Co-Lender
Agreement;
provided that, with respect to a Serviced Loan Combination, any Liquidation
Proceeds derived from a Permitted Purchase of the Trust Mortgage Loan included
in such Serviced Loan Combination or the
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Trust's interest in any related REO Property, shall in each case be deposited
into the Pool Custodial Account.
The foregoing requirements for deposit in each Loan Combination
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of the related Serviced Loan
Combination in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing such Mortgagor's payment of
costs and expenses associated with assumptions and defeasance, modification
fees, extension fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and any similar fees to
which the Master Servicer or Special Servicer is entitled as additional
servicing compensation and that are not expressly referred to in the prior
paragraph, need not be deposited by the Master Servicer in the subject Loan
Combination Custodial Account. If the Master Servicer shall deposit into any
Loan Combination Custodial Account any amount not required to be deposited
therein, then it may at any time withdraw such amount from such Custodial
Account, any provision herein to the contrary notwithstanding. The Master
Servicer shall promptly deliver to the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), all assumption fees
and assumption application fees (or the applicable portions thereof) and other
transaction fees received by the Master Servicer with respect to each Serviced
Loan Combination, to which the Special Servicer is entitled pursuant to such
section, upon receipt of a written statement of a Servicing Officer of the
Special Servicer (upon which the Master Servicer may, absent manifest error,
rely) describing the item and amount (unless pursuant to this Agreement it is
otherwise clear that the Special Servicer is entitled to such amounts, in which
case a written statement is not required). Each Loan Combination Custodial
Account shall be maintained as a segregated account, separate and apart from
trust funds created for mortgage-backed securities of other series and the other
accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to any
Serviced Loan Combination, the Special Servicer shall promptly, but in no event
later than two (2) Business Days after receipt, remit such amounts to the Master
Servicer for deposit into the related Loan Combination Custodial Account in
accordance with the second preceding paragraph (or, if applicable, into the Pool
Custodial Account in accordance with Section 3.04(a) and the proviso to the
second preceding paragraph), unless the Special Servicer determines, consistent
with the Servicing Standard, that a particular item should not be deposited
because of a restrictive endorsement or other appropriate reason. With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement or other appropriate reason. Any such amounts received
by the Special Servicer with respect to an Administered REO Property that
relates to a Serviced Loan Combination shall initially be deposited by the
Special Servicer into the Loan Combination REO Account established with respect
to such Serviced Loan Combination and thereafter remitted to the Master Servicer
for deposit into the related Loan Combination Custodial Account, all in
accordance with Section 3.16(c).
Notwithstanding that a Loan Combination Custodial Account may be a
sub-account of the Pool Custodial Account for reasons of administrative
convenience, such Loan Combination Custodial Account and the Pool Custodial
Account shall, for all purposes of this Agreement (including the obligations and
responsibilities of the Master Servicer hereunder), be considered to be and
shall be required to be treated as, separate and distinct accounts. The Master
Servicer shall indemnify and hold
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harmless the Trust Fund and the respective related Non-Trust Mortgage Loan
Noteholders against any losses arising out of the failure by the Master Servicer
to perform its duties and obligations hereunder as if such accounts were
separate accounts. The provisions of this paragraph shall survive any
resignation or removal of the Master Servicer and appointment of a successor
master servicer.
(b) If and when the related Mortgagor elects to defease any Serviced
Loan Combination or any portion thereof, the provisions of the next to last
paragraph of Section 3.04(a) relating to the Defeasance Deposit Account shall
apply.
(c) In connection with each Serviced Loan Combination, the Master
Servicer shall give notice to the Trustee, the related Non-Trust Mortgage Loan
Noteholder(s) and the Special Servicer of the location of the related Loan
Combination Custodial Account when first established and of the new location of
the related Loan Combination Custodial Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account,
the Collection Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals from
the Pool Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Collection Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b), and any amounts that may be applied to make P&I Advances
with respect to the Mortgage Pool pursuant to Section 4.03(a);
(ii) to reimburse any Fiscal Agent, the Trustee and itself, in
that order, for xxxxxxxxxxxx X&X Advances made thereby with respect to the
Mortgage Pool (exclusive of any Serviced Combination Trust Mortgage Loan or
any successor REO Trust Mortgage Loan with respect thereto), such Fiscal
Agent's, the Trustee's and the Master Servicer's, as the case may be,
respective rights to reimbursement pursuant to this clause (ii) with
respect to any such P&I Advance being limited to amounts on deposit in the
Pool Custodial Account that represent Late Collections of interest and
principal (net of related Master Servicing Fees and any related Workout
Fees and/or Liquidation Fees) received in respect of the particular Trust
Mortgage Loan or REO Trust Mortgage Loan as to which such P&I Advance was
made;
(iii) to pay to itself earned and unpaid Master Servicing Fees
with respect to the Mortgage Pool (exclusive of any Serviced Combination
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto), the Master Servicer's right to payment pursuant to this clause
(iii) with respect to any such Master Servicing Fees being limited to
amounts on deposit in the Pool Custodial Account that are allocable as a
recovery of interest on or in respect of the Trust Mortgage Loan or REO
Trust Mortgage Loan as to which such Master Servicing Fees were earned;
(iv) to pay (A) to the Special Servicer, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
earned and unpaid Special Servicing Fees in respect of each Specially
Serviced Trust Mortgage Loan and each REO Trust Mortgage
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Loan that relates to an Administered REO Property and (B) to itself, out of
general collections on the Mortgage Pool on deposit in the Pool Custodial
Account, any Master Servicing Fee earned in respect of any Trust Mortgage
Loan or REO Trust Mortgage Loan that remains unpaid in accordance with
clause (iii) above or Section 3.05A, as applicable, following a Final
Recovery Determination made with respect to such Trust Mortgage Loan or the
related REO Property and the deposit into the Pool Custodial Account of all
amounts received in connection with such Final Recovery Determination;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Trust Mortgage Loan, each Corrected
Trust Mortgage Loan and/or each REO Trust Mortgage Loan that relates to an
Administered REO Property (other than, if applicable, any Serviced
Combination Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto), as applicable, in the amounts and from the sources
specified in Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Serviced Trust Mortgage Loan or
Administered REO Property (other than any Serviced Combination Trust
Mortgage Loan or any related Administered REO Property), such Fiscal
Agent's, the Trustee's, the Master Servicer's and the Special Servicer's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being limited to amounts on deposit in the
Pool Custodial Account that represent payments made by or on behalf of the
related Mortgagor to cover the item for which such Servicing Advance was
made, and to amounts on deposit in the Pool Custodial Account that
represent Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
and, if applicable, REO Revenues (in each case, if applicable, net of any
Liquidation Fee or Workout Fee payable therefrom) received in respect of
the particular Serviced Trust Mortgage Loan or Administered REO Property as
to which such Servicing Advance was made;
(vii) to reimburse any Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(provided that such amounts may be withdrawn over time in accordance with
Sections 3.11(g) or 4.03(d), as applicable);
(viii) to pay any Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, any unpaid interest accrued and payable in
accordance with Section 3.11(g) or 4.03(d), as applicable, on any Advance
made thereby under this Agreement, such Fiscal Agent's, the Trustee's, the
Master Servicer's and the Special Servicer's respective rights to payment
pursuant to this clause (viii) with respect to interest on any such Advance
being limited to amounts on deposit in the Pool Custodial Account that
represent Default Charges collected on or in respect of the Trust Mortgage
Loan or REO Trust Mortgage Loan, as applicable, as to which the subject
Advance was made, as and to the extent contemplated by Section 3.26;
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, any Fiscal Agent, the Trustee,
itself and the Special Servicer, in that order, any unpaid interest accrued
and payable in accordance with Section 3.11(g) or 4.03(d), as
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applicable, on any Advance made thereby with respect to the Mortgage Pool
(or, in the case of a Servicing Advance, made thereby with respect to a
Serviced Loan Combination), but only to the extent that such Advance has
been reimbursed or is then being reimbursed and the related Default Charges
then on deposit in the Pool Custodial Account are not sufficient to make
such payment as contemplated by the immediately preceding clause (viii);
provided that, if such Advance relates to any Serviced Combination Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto
(or, in the case of Servicing Advance, relates to any Serviced Loan
Combination), such payment pursuant to this clause (ix) is to be made only
to the extent that the funds on deposit in the related Loan Combination
Custodial Account are not sufficient to make such payment as contemplated
by Section 3.05A and such payment cannot be made out of the Pool Custodial
Account pursuant to clause (xviii) of this Section 3.05(a);
(x) to pay, out of amounts on deposit in the Pool Custodial
Account that represent Default Charges collected on or in respect of the
Trust Mortgage Loan or REO Trust Mortgage Loan to which the subject expense
relates (to the extent such Default Charges are not otherwise applied as
contemplated by clause (viii) above), any unpaid expense (other than
interest accrued on Advances, which is payable pursuant to clause (viii)
above, and other than Special Servicing Fees, Liquidation Fees and Workout
Fees) that is incurred with respect to such Trust Mortgage Loan or REO
Trust Mortgage Loan and that, if paid from collections on the Mortgage Pool
other than Default Charges collected with respect to such Trust Mortgage
Loan or REO Trust Mortgage Loan, would constitute an Additional Trust Fund
Expense, as and to the extent contemplated by Section 3.26;
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) costs and expenses incurred
by the Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Sections 3.11(h), 3.18
or 4.03(c), and (C) the fees of any Independent Contractor retained with
respect to any related Administered REO Property pursuant to Section
3.17(d) (to the extent that it has not paid itself such fees prior to
remitting collections on such REO Property to the Special Servicer);
provided that, in the case of a Mortgaged Property that relates to a
Serviced Loan Combination, such payment pursuant to this clause (xi) is to
be made only to the extent that (X) it would not ultimately be payable out
of collections on or in respect of such Loan Combination or (Y) it is in
the best interests of the Certificateholders;
(xii) to pay itself, as additional master servicing compensation
in accordance with Section 3.11(b), any amounts on deposit in the Pool
Custodial Account that represent (A) interest and investment income earned
in respect of amounts held in the Pool Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Pool Custodial Account for any related Investment Period,
(B) Prepayment Interest Excesses collected on the Mortgage Pool and (C) Net
Default Charges (after application pursuant to Section 3.26) actually
Received by the Trust that accrued in respect of an Outside Serviced Trust
Mortgage Loan or Performing Serviced Trust Mortgage Loan; and to pay the
Special Servicer, as additional special servicing compensation in
accordance with Section 3.11(d), any amounts on deposit in the Pool
Custodial Account that represent Net Default Charges (after application to
cover such other payments and reimbursements as are provided for
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under Section 3.26) actually collected that accrued in respect of a
Specially Serviced Trust Mortgage Loan and/or an REO Trust Mortgage Loan
that relates to an Administered REO Property;
(xiii) to pay itself, the Special Servicer, the Depositor, or any
of their respective members, managers, directors, officers, employees and
agents, as the case may be, out of general collections on the Mortgage Pool
on deposit in the Pool Custodial Account, any amounts payable to any such
Person pursuant to Section 6.03; provided that such payment does not relate
solely to a Serviced Non-Trust Mortgage Loan or any successor REO Mortgage
Loan with respect thereto;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the Special
Servicer that protects or is in furtherance of the rights and interests of
Certificateholders, and (C) the cost of recording this Agreement in
accordance with Section 11.02(a); provided that, in the cases of clauses
(xiv)(A) and (xiv)(C), such payment shall be made from the Pool Custodial
Account only to the extent that it is not otherwise paid from the related
Loan Combination Custodial Account by the Trust Master Servicer Remittance
Date following the applicable Collection Period in which the expense is
incurred;
(xv) to pay itself, the Special Servicer, the Depositor, any
Controlling Class Certificateholder or any other Person, as the case may
be, with respect to each Trust Mortgage Loan, if any, previously purchased
by such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase that have been deposited in the Pool
Custodial Account;
(xvi) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any servicing expenses, that would, if advanced, constitute Nonrecoverable
Servicing Advances (other than servicing expenses that relate solely to a
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto);
(xvii) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, to a Non-Trust Mortgage Loan
Noteholder or an Outside Servicer, any amount (other than normal monthly
payments) specifically payable or reimbursable to such party by the Trust,
in its capacity as holder of the related Trust Mortgage Loan or REO Trust
Mortgage Loan that is part of the relevant Loan Combination, pursuant to
the terms of the related Co-Lender Agreement;
(xviii) to reimburse or pay any Fiscal Agent, the Trustee, the
Master Servicer and/or the Special Servicer, as applicable, for
unreimbursed Advances, unpaid Liquidation Fees, unpaid Special Servicing
Fees, unpaid Workout Fees, unpaid Master Servicing Fees and/or any unpaid
interest on any Advances, but only if and to the extent that such items
relate solely to a Serviced Combination Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, each such party's
respective rights to reimbursement pursuant to this clause (xviii) to be
limited to amounts on deposit in the Pool Custodial Account that represent
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Liquidation Proceeds derived from a Permitted Purchase of such Serviced
Combination Trust Mortgage Loan or the Trust's interest in any related
Administered REO Property; provided that, such items may only be reimbursed
to any party pursuant to this clause (xviii) if and to the extent that such
items have not been or are not simultaneously being reimbursed to such
party pursuant to Section 3.05A; and provided, further, that, in the case
of a sale of a Serviced Combination Trust Mortgage Loan with respect to
which the Purchase Price therefor has been reduced by amounts set forth in
the next to last proviso of the definition of "Purchase Price", the amount
of any unpaid Master Servicing Fees, unreimbursed Advances and/or unpaid
interest on Advances reimbursable to any party pursuant to this clause
(xviii) shall be reduced by any related unpaid Master Servicing Fees,
unreimbursed Advances and unpaid interest on Advances in respect of the
subject Serviced Combination Trust Mortgage Loan or REO Trust Mortgage Loan
that have served to so reduce such Purchase Price therefor and which,
following the purchase or sale from which the subject Liquidation Proceeds
have been derived, will continue to be payable or reimbursable under the
related Co-Lender Agreement and/or any successor servicing agreement with
respect to the related Serviced Loan Combination to the Master Servicer
and/or the Special Servicer (and which amounts shall no longer be payable
hereunder);
(xix) in the event the Master Servicer determines, in accordance
with the Servicing Standard, with respect to an Outside Serviced Trust
Mortgage Loan, that it has received insufficient information from the
Outside Master Servicer to make a recoverability determination with respect
to required P&I Advances on that Outside Serviced Trust Mortgage Loan, to
pay, out of general collections on the Mortgage Pool on deposit in the Pool
Custodial Account, for costs incurred in connection with obtaining an
appraisal and/or other relevant information necessary to make such
determination;
(xx) on each Trust Master Servicer Remittance Date, to transfer
Excess Liquidation Proceeds in respect of the Mortgage Pool to the Trustee,
for deposit in the Excess Liquidation Proceeds Account, in accordance with
Section 3.04(d);
(xxi) to withdraw any amounts deposited by the Master Servicer in
the Pool Custodial Account in error; and
(xxii) to clear and terminate the Pool Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Pool Custodial Account pursuant to clauses (ii) through (xx)
above.
The Master Servicer shall pay to the Special Servicer (or to
third-party contractors at the direction of the Special Servicer), the Trustee
or any Fiscal Agent from the Pool Custodial Account, amounts permitted to be
paid to the Special Servicer (or to any such third-party contractor), the
Trustee or such Fiscal Agent therefrom promptly upon receipt of a written
statement of a Servicing Officer of the Special Servicer or of a Responsible
Officer of the Trustee or such Fiscal Agent describing the item and amount to
which the Special Servicer (or such third-party contractor), the Trustee or such
Fiscal Agent, as applicable, is entitled (unless such payment to the Special
Servicer, the Trustee (for example, the Trustee Fee) or such Fiscal Agent, as
the case may be, is clearly required pursuant to this Agreement, in which case a
written statement is not required). The Master Servicer may rely
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conclusively on any such written statement and shall have no duty to
re-calculate the amounts stated therein.
In connection with any payments required to be made to a Non-Trust
Mortgage Loan Noteholder or an Outside Servicer in accordance with Section
3.05(a)(xvii), the Master Servicer may request a written statement from an
authorized officer of such Non-Trust Mortgage Loan Noteholder or Outside
Servicer, as the case may be, describing the nature and amount of the item for
which such party is seeking payment or reimbursement and setting forth the
provision(s) of the related Co-Lender Agreement pursuant to which such party
believes it is entitled to reimbursement; provided that the Master Servicer may
not condition payments required to be made to a Non-Trust Mortgage Loan
Noteholder or an Outside Servicer in accordance with Section 3.05(a)(xvii) upon
receipt of such a written statement (other than as permitted under the related
Co-Lender Agreement); and provided, further, that to the extent such a written
statement from an officer of the subject Non-Trust Mortgage Loan Noteholder or
Outside Servicer, as the case may be, is received by the Master Servicer, the
Master Servicer may, absent manifest error, rely upon such statement as the
nature and amount of the item for which reimbursement is sought.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Trust Mortgage Loan and Administered REO Property, on a
loan-by-loan basis, for the purpose of justifying any request for withdrawal
from the Pool Custodial Account. With respect to each Trust Mortgage Loan for
which it makes an Advance, each of the Trustee and any Fiscal Agent shall keep
and maintain separate accounting, on a loan-by-loan basis, for the purpose of
justifying any request for withdrawal from the Pool Custodial Account for
reimbursements of Advances or payments of interest thereon.
(b) The Trustee may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (in no particular order of
priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay (A) the Trustee, any Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
out of general collections on the Mortgage Pool on deposit in the
Collection Account, any amounts payable or reimbursable to any such Person
pursuant to Section 7.01(b) and/or Section 8.05, as applicable, and (B) as
and when contemplated by Section 8.08, the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without cause;
(iii) to pay, out of general collections on the Mortgage Pool on
deposit in the Collection Account, for the cost of the Opinions of Counsel
sought by the Trustee or the Tax Administrator (A) as provided in clause
(iv) of the definition of "Disqualified Organization", (B) as contemplated
by Sections 10.01(i) and 10.02(i), or (C) as contemplated by Section
11.01(a) or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the rights
and interests of Certificateholders;
(iv) to pay, out of general collections on the Mortgage Pool on
deposit in the Collection Account, any and all federal, state and local
taxes imposed on any REMIC Pool or on
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the assets or transactions of any REMIC Pool, together with all incidental
costs and expenses, to the extent none of the Depositor, the Trustee, the
Tax Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(j) or Section 10.02(j);
(v) to pay the Tax Administrator, out of general collections on
the Mortgage Pool on deposit in the Collection Account, any amounts
reimbursable to it pursuant to Section 10.01(f) or Section 10.02(b);
(vi) to pay the Master Servicer any amounts deposited by the
Master Servicer in the Collection Account in error;
(vii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans
to the Interest Reserve Account as and when required by Section 3.04(c);
(viii) to pay itself any Net Investment Earnings with respect to
the Collection Account for any related Investment Period; and
(ix) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (viii) above from the Collection Account prior to making distributions
to Certificateholders on such Distribution Date.
(c) On each Trust Master Servicer Remittance Date in March (commencing
in March 2008), the Trustee shall withdraw from the Interest Reserve Account and
deposit in the Collection Account all Interest Reserve Amounts that have been
deposited in the Interest Reserve Account in respect of the Interest Reserve
Mortgage Loans and any Interest Reserve REO Mortgage Loans during January and/or
February of the same year in accordance with Section 3.04(c). On each
Distribution Date, the Trustee may withdraw from the Interest Reserve Account
and pay itself any Net Investment Earnings with respect to the Interest Reserve
Account for the then most recently ended related Investment Period.
(d) On each Trust Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Collection Account, for distribution on the following Distribution Date, an
amount equal to the lesser of (i) the entire amount, if any, then on deposit in
the Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable with respect to the Regular Interest Certificates
on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Collection Account); provided that on the Trust Master Servicer Remittance Date
immediately prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Collection
Account, for distribution on such Distribution Date, any and all amounts then on
deposit in the Excess Liquidation Proceeds Account. On each Distribution Date,
the Trustee may withdraw from the Excess Liquidation Proceeds Account and pay
itself any Net Investment Earnings with respect to the Excess Liquidation
Proceeds Account for the then most recently ended related Investment Period.
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(e) If any Loss of Value Payments are deposited into the Loss of Value
Reserve Fund with respect to any Trust Mortgage Loan or any related REO
Property, then the Trustee shall, promptly upon receipt of a written instruction
from the Special Servicer directing the Trustee to effect a transfer of Loss of
Value Payments and the amount thereof, transfer such Loss of Value Payments (up
to the remaining portion thereof) from the Loss of Value Reserve Fund to the
Pool Custodial Account for the following purposes:
(i) to reimburse the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, in accordance with Section 3.05(a), for any
Nonrecoverable Advance made by such party with respect to such Trust
Mortgage Loan or any related REO Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.05(a), or to reimburse
the Trust for the prior payment of, any expense relating to such Trust
Mortgage Loan or any related REO Property that constitutes or, if not paid
out of such Loss of Value Payments, would constitute an Additional Trust
Fund Expense;
(iii) to offset any Realized Loss (as calculated without regard
to the application of such Loss of Value Payments) incurred with respect to
such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto; and
(iv) following the occurrence of a Liquidation Event with respect
to such Trust Mortgage Loan or any related REO Property, to cover the items
contemplated by the immediately preceding clauses (i)-(iii) in respect of
any other Trust Mortgage Loan or REO Trust Mortgage Loan.
Any Loss of Value Payments transferred to the Pool Custodial Account
pursuant to clauses (i)-(iii) of the prior paragraph shall, except for purposes
of Section 3.11(c), be deemed to constitute Liquidation Proceeds Received by the
Trust in respect of the related Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto for which such Loss of Value Payments were
received; and any Loss of Value Payments transferred to the Pool Custodial
Account pursuant to clause (iv) of the prior paragraph shall, except for
purposes of Section 3.11(c), be deemed to constitute Liquidation Proceeds
Received by the Trust in respect of the Trust Mortgage Loan or REO Trust
Mortgage Loan for which such Loss of Value Payments are being transferred to the
Pool Custodial Account to cover an item contemplated by clauses (i)-(iii) of the
prior paragraph.
On the Trust Master Servicer Remittance Date related to the Final
Distribution Date, the Trustee shall withdraw from the Loss of Value Reserve
Fund, and deposit in the Collection Account for distribution on the Final
Distribution Date, an amount equal to the lesser of (i) the entire amount, if
any, then on deposit in the Loss of Value Reserve Fund and (ii) the excess, if
any, of the aggregate amount needed to distribute to the Holders of the Regular
Interest Certificates in accordance with Section 9.01(a), all Distributable
Certificate Interest then payable thereto, together with the aggregate
Certificate Principal Balance of, and all Loss Reimbursement Amounts for such
Final Distribution Date in respect of, the respective Classes of the Regular
Interest Certificates, over the Available Distribution Amount for the Final
Distribution Date (calculated without regard to such transfer from the Loss of
Value Reserve Fund to the Collection Account). Such Loss of Value Payments so
deposited in the Collection Account shall constitute part of the Available
Distribution Amount for the Final Distribution Date. Any amount remaining in the
Loss of Value Reserve Fund on the Final Distribution Date, after application in
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accordance with the second preceding sentence, shall be distributable to the
Holders of the Class R-III Certificates on the Final Distribution Date.
SECTION 3.05A. Permitted Withdrawals From the Loan Combination
Custodial Accounts.
(a) The Master Servicer may, from time to time, make withdrawals from
the Loan Combination Custodial Account related to each Serviced Loan Combination
for any of the following purposes (the order set forth below not constituting an
order of priority for such withdrawals, except to the extent expressly provided
in the related Co-Lender Agreement):
(i) to make remittances each month, on or before the related Loan
Combination Master Servicer Remittance Date occurring in such month (and at
such other times as may be required under the related Co-Lender Agreement),
to the respective holders of the Mortgage Loans or any successor REO
Mortgage Loans contained in the subject Serviced Loan Combination,
including the Trust (as holder of the Trust Mortgage Loan contained in the
subject Serviced Loan Combination or any successor REO Trust Mortgage Loan
with respect thereto, as applicable), all in accordance with the related
Co-Lender Agreement, such remittances to the Trust to be made into the Pool
Custodial Account;
(ii) to reimburse, (A) first, any Fiscal Agent, second, the
Trustee, and last, itself, in that order, for xxxxxxxxxxxx X&X Advances
made by such party (with its own funds) with respect to the Trust Mortgage
Loan included in the subject Serviced Loan Combination or any successor REO
Trust Mortgage Loan with respect thereto, and (B) in the case of a Serviced
Pari Passu Loan Combination, if the related Serviced Pari Passu Non-Trust
Mortgage Loan has been included in a commercial mortgage securitization,
the applicable party under the related Non-Trust Mortgage Loan
Securitization Agreement for any delinquency advance (comparable to a P&I
Advance) made by such party (with its own funds) with respect to the
related Serviced Pari Passu Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, any such reimbursement pursuant to this
clause (ii) with respect to any such P&I Advance or comparable delinquency
advance to be made out of amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable to the
Trust or the related Non-Trust Mortgage Loan Noteholder, as applicable, as
late collections of interest on and/or principal of the Mortgage Loan
included in the subject Serviced Loan Combination or any successor REO
Mortgage Loan with respect thereto, as the case may be, without regard to
such P&I Advance or comparable delinquency advance, as the case may be,
such reimbursement to be deducted (if and to the extent so provided in the
related Co-Lender Agreement) from the amounts otherwise so distributable;
(iii) to reimburse, first, any Fiscal Agent, second, the Trustee,
third, itself and, last, the Special Servicer, in that order, for any
unreimbursed Servicing Advances made thereby with respect to the subject
Serviced Loan Combination or any related REO Property, any such party's
respective rights to reimbursement pursuant to this clause (iii) with
respect to any Servicing Advance being limited to amounts on deposit in the
related Loan Combination Custodial Account that represent payments made by
or on behalf of the related Mortgagor to cover the item for which such
Servicing Advance was made, and to amounts on deposit in the related Loan
Combination Custodial Account that represent Liquidation Proceeds,
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Condemnation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
(in each case, if applicable, net of any Liquidation Fee or Workout Fee
payable therefrom) received in respect of the subject Serviced Loan
Combination or any related REO Property (with, if and to the extent
applicable under the related Co-Lender Agreement, a corresponding
allocation of such Servicing Advance and the reimbursement thereof to one
or more of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto, and a
corresponding deduction of such Servicing Advance from the amounts
otherwise distributable under the related Co-Lender Agreement to one or
more of the respective holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto, all in accordance with the related Co-Lender Agreement, and taking
into account the subordination of any Serviced Subordinate Non-Trust
Mortgage Loan(s) included in the subject Serviced Loan Combination or any
successor REO Mortgage Loan(s) with respect thereto;
(iv) in the case of a Serviced Pari Passu Loan Combination, to
pay any Fiscal Agent, the Trustee and itself and, if any related Serviced
Pari Passu Non-Trust Mortgage Loan has been included in a commercial
mortgage securitization, the applicable party under the related Non-Trust
Mortgage Loan Securitization Agreement, for any unpaid interest accrued and
payable hereunder or under such Non-Trust Mortgage Loan Securitization
Agreement, as applicable, on any P&I Advance made thereby under this
Agreement on the related Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto or on any delinquency advance comparable
to a P&I Advance made thereby under the applicable Non-Trust Mortgage Loan
Securitization Agreement with respect to any related Serviced Pari Passu
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, any such payment (as and to the extent provided in the related
Co-Lender Agreement) to be made pursuant to this clause (iv) out of: first,
any amounts on deposit in the related Loan Combination Custodial Account
that would otherwise be distributable under the related Co-Lender Agreement
to the holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto as
Default Charges on their respective Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, all in accordance with Section 3.26,
with such payment to be deducted from the amounts otherwise so
distributable; second, to the maximum extent permitted by the related
Co-Lender Agreement, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Loan Noteholder(s) with
respect to any related Serviced Subordinate Non-Trust Mortgage Loan(s) or
any successor REO Mortgage Loan(s) with respect thereto as collections of
interest on and/or principal of, or any other relevant amounts with respect
to, such Serviced Subordinate Non-Trust Mortgage Loan(s) or any successor
REO Mortgage Loan(s) with respect thereto, with such payment to be deducted
(if and to the extent so provided in the related Co-Lender Agreement) from
such amounts otherwise so distributable; and third, any remaining amounts
on deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holder of the subject Serviced Mortgage Loan or any successor REO Mortgage
Loan with respect thereto as to which the subject P&I Advance or other
comparable delinquency advance was made (with, if and to the extent
applicable under the related Co-Lender Agreement, a corresponding
allocation of the remaining portion of such interest on such P&I Advance or
other comparable delinquency advance and the payment thereof to such
subject Serviced Mortgage Loan or any successor REO Mortgage Loan with
respect
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thereto, and a corresponding deduction of the remaining portion of such
interest on such P&I Advance or other comparable delinquency advance from
such remaining amounts otherwise so distributable under the related
Co-Lender Agreement to the holder of such subject Serviced Mortgage Loan or
any successor REO Mortgage Loan with respect thereto, all in accordance
with the related Co-Lender Agreement); provided that, in the case of
subclauses second and third of this clause (iv), such payment shall be made
only to the extent the related P&I Advance or other comparable delinquency
advance has been or is contemporaneously being reimbursed and only insofar
as such unpaid interest is not then payable pursuant to a withdrawal made
in accordance with subclause first of this clause (iv);
(v) in the case of any Serviced A/B Loan Combination, to pay any
Fiscal Agent, the Trustee and itself for any unpaid interest accrued and
payable hereunder on any P&I Advance made thereby under this Agreement on
the Trust Mortgage Loan included in the subject Serviced Loan Combination
or any successor REO Trust Mortgage Loan with respect thereto, any such
payment (as and to the extent provided in the related Co-Lender Agreement)
to be made pursuant to this clause (v) out of: first, any amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto as
Default Charges on their respective Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, all in accordance with Section 3.26,
with such payment to be deducted from the amounts otherwise so
distributable; and second, to the maximum extent permitted by the related
Co-Lender Agreement, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s) as
collections of interest on and/or principal of, or any other relevant
amounts with respect to, the Serviced Note B Non-Trust Mortgage Loan(s)
included in the subject Serviced Loan Combination or any successor REO
Mortgage Loan(s) with respect thereto, with such payment to be deducted (if
and to the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and third, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto (with,
if and to the extent applicable under the related Co-Lender Agreement, a
corresponding allocation of the remaining portion of such interest on such
P&I Advance and the payment thereof to one or more of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction of the
remaining portion of such interest on such P&I Advance from such remaining
amounts otherwise so distributable under the related Co-Lender Agreement to
one or more of the respective holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto, all in accordance with the related Co-Lender Agreement,
and taking into account the subordination of the Serviced Note B Non-Trust
Mortgage Loan(s) included in the subject Serviced Loan Combination or any
successor REO Mortgage Loan(s) with respect thereto); provided that, in the
case of subclauses second and third of this clause (v), such payment shall
be made only to the extent the related P&I Advance has been or is
contemporaneously being reimbursed and only insofar as such unpaid interest
is not then payable pursuant to a withdrawal made in accordance with
subclause first of this clause (v);
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(vi) to pay any Fiscal Agent, the Trustee, itself and the Special
Servicer for any unpaid interest accrued and payable hereunder on any
Servicing Advance made thereby under this Agreement with respect to the
subject Serviced Loan Combination or any related Administered REO Property,
any such payment (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (vi) out of: first, any
amounts on deposit in the related Loan Combination Custodial Account that
would otherwise be distributable under the related Co-Lender Agreement to
the holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto as
Default Charges on their respective Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, all in accordance with Section 3.26,
with such payment to be deducted from such amounts otherwise so
distributable; second, to the maximum extent permitted by the related
Co-Lender Agreement, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s),
as collections of interest on and/or principal of, or any other relevant
amounts with respect to, any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto, with such payment to be deducted
(if and to the extent so provided in the related Co-Lender Agreement) from
such amounts otherwise so distributable; and third, any remaining amounts
on deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto (with,
if and to the extent applicable under the related Co-Lender Agreement, a
corresponding allocation of the remaining portion of such interest on such
Servicing Advance and the payment thereof to one or more of the Mortgage
Loans comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction of the
remaining portion of such interest on such Servicing Advance from such
remaining amounts otherwise so distributable under the related Co-Lender
Agreement to one or more of the respective holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, all in accordance with the related
Co-Lender Agreement, and taking into account the subordination of any
Serviced Subordinate Non-Trust Mortgage Loan(s) included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan(s) with
respect thereto); provided that, in the case of subclause second and third
of this clause (vi), such payment shall be made only to the extent the
related Servicing Advance has been or is contemporaneously being reimbursed
and only insofar as such unpaid interest is not then payable pursuant to a
withdrawal made in accordance with subclause first above of this clause
(vi);
(vii) to pay to itself any earned and unpaid Master Servicing
Fees with respect to each Mortgage Loan and successor REO Mortgage Loan
contained in the subject Serviced Loan Combination, the right of the Master
Servicer to payment pursuant to this clause (vii) with respect to any such
Mortgage Loan or successor REO Mortgage Loan being limited to amounts on
deposit in the related Loan Combination Custodial Account that were
received on or in respect of such Mortgage Loan or such successor REO
Mortgage Loan, as the case may be, and are allocable as a recovery of
interest thereon;
(viii) to reimburse, first, any Fiscal Agent, second, the
Trustee, and last, itself, in that order, for any xxxxxxxxxxxx X&X Advances
made by such party (with its own funds) with
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respect to the Trust Mortgage Loan included in the subject Serviced Loan
Combination or any successor REO Trust Mortgage Loan with respect thereto
that such party has determined are Nonrecoverable Advances, any such
reimbursement (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (viii) out of: first, to the
maximum extent permitted under the related Co-Lender Agreement, any amounts
on deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
related Non-Trust Mortgage Loan Noteholder(s), as collections of interest
on and/or principal of, or any other relevant amounts with respect to, any
Serviced Subordinate Non-Trust Mortgage Loan(s) included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan(s) with
respect thereto, with such payment to be deducted (if and to the extent so
provided in the related Co-Lender Agreement) from such amounts otherwise so
distributable; and second, any remaining amounts on deposit in the related
Loan Combination Custodial Account that would otherwise be distributable
under the related Co-Lender Agreement to the holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto (with, if and to the extent applicable
under the related Co-Lender Agreement, a corresponding allocation of the
remaining portion of such P&I Advances and the reimbursement thereof to one
or more of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto, and a
corresponding deduction of the remaining portion of such P&I Advances from
such remaining amounts otherwise so distributable under the related
Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
(ix) to reimburse, first, any Fiscal Agent, second, the Trustee,
third, itself, and last, the Special Servicer, in that order, for any
unreimbursed Servicing Advance made by such party (with its own funds) with
respect to the subject Serviced Loan Combination or any related
Administered REO Property that such party has determined is a
Nonrecoverable Advance, any such reimbursement (as and to the extent
provided in the related Co-Lender Agreement) to be made pursuant to this
clause (ix) out of: first, to the maximum extent permitted by the related
Co-Lender Agreement, amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s) as
collections of interest on and/or principal of, or any other relevant
amounts with respect to, any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto, with such reimbursement to be
deducted (if and to the extent so provided in the related Co-Lender
Agreement) from the amounts otherwise so distributable; and, second, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
Servicing Advance and the reimbursement thereof to one or more of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of
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such Servicing Advance from such remaining amounts otherwise so
distributable under the related Co-Lender Agreement to one or more of the
respective holders of the Mortgage Loans comprising the subject Serviced
Loan Combination or any successor REO Mortgage Loans with respect thereto,
all in accordance with the related Co-Lender Agreement, and taking into
account the subordination of any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto);
(x) to pay to the Special Servicer any earned and unpaid Special
Servicing Fees in respect of the subject Serviced Loan Combination, any
such payment (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (x) out of: first, to the
maximum extent permitted under the related Co-Lender Agreement, any amounts
on deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
related Non-Trust Mortgage Loan Noteholder(s) as collections of interest on
and/or principal of, or any other relevant amounts with respect to, any
Serviced Subordinate Non-Trust Mortgage Loan(s) included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan(s) with
respect thereto, with such payment to be deducted (if and to the extent so
provided in the related Co-Lender Agreement) from such amounts otherwise so
distributable; and, second, any remaining amounts on deposit in the related
Loan Combination Custodial Account that would otherwise be distributable
under the related Co-Lender Agreement to the holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto (with, if and to the extent applicable
under the related Co-Lender Agreement, a corresponding allocation of the
remaining portion of such Special Servicing Fees and the payment thereof to
one or more of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto, and a
corresponding deduction of the remaining portion of such Special Servicing
Fees from such remaining amounts otherwise so distributable under the
related Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
(xi) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Workout Fees and
Liquidation Fees in respect of the subject Serviced Loan Combination, in
the amounts and, subject to the following priority, from the sources
specified in Section 3.11(c) out of: first, to the maximum extent permitted
under the related Co-Lender Agreement, any amounts on deposit in the
related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the related
Non-Trust Mortgage Loan Noteholder(s) as collections of interest on and/or
principal of, or any other relevant amounts with respect to, any Serviced
Subordinate Non-Trust Mortgage Loan(s) included in the subject Serviced
Loan Combination or any successor REO Mortgage Loan(s) with respect
thereto, with such payment to be deducted (if and to the extent so provided
in the related Co-Lender Agreement) from such amounts otherwise so
distributable; and, second, any remaining amounts on deposit in the related
Loan Combination Custodial Account that would otherwise be distributable
under the related Co-Lender Agreement to the
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holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto (with,
if and to the extent applicable under the related Co-Lender Agreement, a
corresponding allocation of the remaining portion of such Workout Fees
and/or Liquidation Fees and the payment thereof to one or more of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such Workout Fees and/or Liquidation
Fees from such remaining amounts otherwise so distributable under the
related Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
(xii) to pay for (A) costs and expenses incurred with respect to
the Mortgaged Property securing the subject Serviced Loan Combination
pursuant to Section 3.09(c) (other than the costs of environmental testing,
which are to be covered by, and reimbursable as, a Servicing Advance), (B)
the costs and expenses of obtaining appraisals of such Mortgaged Property
pursuant to Section 3.11(h), 3.18 or Section 4.03(c), as applicable, (C)
any servicing expenses incurred with respect to the subject Serviced Loan
Combination or any related REO Property, that would, if advanced,
constitute Nonrecoverable Servicing Advances, in accordance with Section
3.11(i), and (D) the fees of any Independent Contractor retained with
respect to any Administered REO Property related to the subject Serviced
Loan Combination pursuant to Section 3.17(d) (to the extent that it has not
paid itself such fees prior to remitting collections on such Administered
REO Property to the Special Servicer), any such payment (as and to the
extent provided in the related Co-Lender Agreement) to be made pursuant to
this clause (xii) out of: first, to the maximum extent permitted under the
related Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s) as collections of interest on and/or principal of, or any
other relevant amounts with respect to, any Serviced Subordinate Non-Trust
Mortgage Loan(s) included in the subject Serviced Loan Combination or any
successor REO Mortgage Loan(s) with respect thereto, with such payment to
be deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and, second, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
items specified in subclauses (A)-(D) of this clause (xii) and the payment
thereof to one or more of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto, and a corresponding deduction of the remaining portion of such
items specified in subclauses (A)-(D) of this clause (xii) from such
remaining amounts otherwise so distributable under the related Co-Lender
Agreement to one or more of the respective holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, all in accordance with the related
Co-Lender Agreement, and taking into account the subordination of any
Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
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subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
(xiii) to pay itself, as additional master servicing compensation
in accordance with Section 3.11(b), interest and investment income earned
in respect of amounts held in the related Loan Combination Custodial
Account as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the related Loan Combination Custodial
Account for any related Investment Period;
(xiv) to pay itself, the Special Servicer, the Depositor or any
of their respective members, managers, directors, officers, employees and
agents, as the case may be, any amounts payable to any such Person pursuant
to Section 6.03, to the extent such amounts relate to the subject Loan
Combination, any such payment (as and to the extent provided in the related
Co-Lender Agreement) to be made pursuant to this clause (xiv) out of:
first, to the maximum extent permitted under the related Co-Lender
Agreement, any amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the related Non-Trust Mortgage Loan Noteholder(s) as
collections of interest on and/or principal of, or any other relevant
amounts with respect to, any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto, with such payment to be deducted
(if and to the extent so provided in the related Co-Lender Agreement) from
such amounts otherwise so distributable; and, second, any remaining amounts
on deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto (with,
if and to the extent applicable under the related Co-Lender Agreement, a
corresponding allocation of the remaining portion of such amounts payable
pursuant to Section 6.03 and the payment thereof to one or more of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such amounts payable pursuant to
Section 6.03 from such remaining amounts otherwise so distributable under
the related Co-Lender Agreement to one or more of the respective holders of
the Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
(xv) to pay (out of amounts otherwise payable thereto under the
related Co-Lender Agreement on any related Loan Combination Master Servicer
Remittance Date) the respective shares of the holders of the Mortgage Loans
or any REO Mortgage Loans contained in the subject Serviced Loan
Combination of the cost of recording of the related Co-Lender Agreement in
accordance with such Co-Lender Agreement;
(xvi) to pay for the cost of recording this Agreement and the
cost of any corresponding Opinion of Counsel, insofar as such recordation
is for the benefit of the holders of the Mortgage Loans or any successor
REO Mortgage Loans contained in the subject Serviced Loan Combination, any
such payment (as and to the extent provided in the related Co-Lender
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Agreement) to be made pursuant to this clause (xvi) out of: first, to the
maximum extent permitted under the related Co-Lender Agreement, any amounts
on deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
related Non-Trust Mortgage Loan Noteholder(s) as collections of interest on
and/or principal of, or any other relevant amounts with respect to, any
Serviced Subordinate Non-Trust Mortgage Loan(s) included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan(s) with
respect thereto, with such payment to be deducted (if and to the extent so
provided in the related Co-Lender Agreement) from such amounts otherwise so
distributable; and, second, any remaining amounts on deposit in the related
Loan Combination Custodial Account that would otherwise be distributable
under the related Co-Lender Agreement to the holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto (with, if and to the extent applicable
under the related Co-Lender Agreement, a corresponding allocation of the
remaining portion of such costs and the payment thereof to one or more of
the Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such costs from such remaining
amounts otherwise so distributable under the related Co-Lender Agreement to
one or more of the respective holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto, all in accordance with the related Co-Lender Agreement,
and taking into account the subordination of any Serviced Subordinate
Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto);
(xvii) to the extent (A) consistent with the Co-Lender Agreement
for the subject Serviced Loan Combination and (B) not otherwise included
among the payments contemplated by clause (i) above of this Section 3.05A,
to transfer to the Pool Custodial Account the aggregate of all Additional
Trust Fund Expenses and/or any other amounts relating to the subject
Serviced Loan Combination, that have been previously paid out of the Pool
Custodial Account pursuant to Section 3.05(a) and that, if not previously
paid out of the Pool Custodial Account in accordance with Section 3.05(a),
would have been otherwise payable from such Loan Combination Custodial
Account under this Section 3.05A;
(xviii) if the related Co-Lender Agreement permits any related
Non-Trust Mortgage Loan Noteholder to cure defaults under the Trust
Mortgage Loan included in the subject Serviced Loan Combination, to
reimburse any amounts paid by the applicable Non-Trust Mortgage Loan
Noteholder in connection with exercising such cure rights, such Non-Trust
Mortgage Loan Noteholder's right to reimbursement under this clause (xviii)
to be limited to amounts on deposit in the related Loan Combination
Custodial Account that represent collections on the subject Serviced Loan
Combination that are specifically allocable to such reimbursement in
accordance with the related Co-Lender Agreement; and
(xix) to clear and terminate such Loan Combination Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with any withdrawal from each Loan Combination Custodial
Account pursuant to clauses (ii) through (xviii) of the preceding paragraph.
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(b) The Master Servicer shall pay to each of the Special Servicer (or
to third-party contractors at the direction of the Special Servicer), the
Trustee or any Fiscal Agent, as applicable, from each Loan Combination Custodial
Account, amounts permitted to be paid thereto from such account promptly upon
receipt of a written statement of (i) a Servicing Officer of the Special
Servicer or (ii) a Responsible Officer of the Trustee or such Fiscal Agent, as
the case may be, in each case describing the item and amount to which the
Special Servicer (or such third-party contractor), the Trustee or such Fiscal
Agent, as the case may be, is entitled (unless such payment to the Special
Servicer, the Trustee or such Fiscal Agent, as the case may be, is clearly
required pursuant to this Agreement, in which case written statements shall not
be required). The Master Servicer may rely conclusively on any such written
statement and shall have no duty to re-calculate the amounts stated therein. The
parties seeking payment pursuant to this section shall each keep and maintain
separate accounting for the purpose of justifying any request for withdrawal
from each Loan Combination Custodial Account, on a loan-by-loan basis.
In the case of each Serviced Loan Combination, the Master Servicer
shall remit or cause to be remitted to each Serviced Non-Trust Mortgage Loan
Noteholder, within one (1) Business Day of the Master Servicer's receipt
thereof, late collections (not including Principal Prepayments) received on the
related Serviced Non-Trust Mortgage Loan subsequent to the related Determination
Date therefor in any particular month (exclusive of any portion of such amount
payable or reimbursable to any third party in accordance in accordance with this
Agreement and the related Co-Lender Agreement), to the extent such amount is not
otherwise included or scheduled to be included in a normal monthly remittance
during such month to such Serviced Non-Trust Mortgage Loan Noteholder and in
respect of which an advance is required to be made or has been made by a service
provider of the related securitization trust.
To the extent (i) consistent with the Co-Lender Agreement for the
related Serviced Loan Combination and (ii) not otherwise included as part of the
normal monthly remittance, the Master Servicer shall transfer from each Loan
Combination Custodial Account to the Pool Custodial Account, promptly upon
amounts for such purposes becoming available in such Loan Combination Custodial
Account, the aggregate of all Additional Trust Fund Expenses and/or any other
amounts relating to such Serviced Loan Combination, that have been previously
paid out of the Pool Custodial Account pursuant to Section 3.05(a) and that, if
not previously paid out of the Pool Custodial Account in accordance with Section
3.05(a), would have been otherwise payable from such Loan Combination Custodial
Account under this Section 3.05A.
In accordance with the Co-Lender Agreement for each Serviced Loan
Combination, the Master Servicer shall, as and when required thereunder (or, if
no date is specified therein, on each applicable Loan Combination Master
Servicer Remittance Date), withdraw from the related Loan Combination Custodial
Account and (i) transfer to the Pool Custodial Account all amounts required to
be remitted to the Trust with respect to the Trust Mortgage Loan included in
such Serviced Loan Combination and/or any successor REO Trust Mortgage Loan with
respect thereto, pursuant to the related Co-Lender Agreement, and (ii) remit to
the related Serviced Non-Trust Mortgage Loan Noteholder(s) all amounts required
to be remitted thereto with respect to the Serviced Non-Trust Mortgage Loan(s)
included in such Serviced Loan Combination and/or any successor REO Mortgage
Loan with respect thereto, pursuant to the related Co-Lender Agreement. Monthly
remittances to the holder(s) of the Non-Trust Mortgage Loan(s) included in any
Serviced Loan Combination and/or any successor REO Mortgage Loan(s) with respect
thereto shall, in each case, be made as and when required
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under the related Co-Lender Agreement (or, if no date is specified therein, on
the applicable Loan Combination Master Servicer Remittance Date) in accordance
with the reasonable instructions of such respective holder(s), including as to
the method of payment (which shall be by wire transfer of immediately available
funds).
In connection with each Serviced Loan Combination that includes any
Specially Designated Securitized Non-Trust Mortgage Loan, if the Master Servicer
fails, on or before any applicable Loan Combination Master Servicer Remittance
Date for such Loan Combination, to remit to the holder of such Non-Trust
Mortgage Loan any amount(s) required to be so remitted to such holder hereunder
on or before such date, the Master Servicer shall pay to such holder, for the
account of such holder, interest, calculated at the federal funds rate (or such
other rate as may be provided for under the related Co-Lender Agreement), on
such amount(s) not timely remitted, from and including such Loan Combination
Master Servicer Remittance Date to but not including the date on which the
required remittance is made.
SECTION 3.06. Investment of Funds in the Collection Account, the
Servicing Accounts, the Reserve Accounts, the Defeasance Deposit Account, the
Custodial Accounts, the REO Accounts, the Interest Reserve Account and the
Excess Liquidation Proceeds Account.
(a) (i) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (any of the foregoing accounts listed in
this clause (i), a "Master Servicer Account"), (ii) the Special Servicer may
direct in writing any depository institution maintaining an REO Account, and
(iii) the Trustee may direct (pursuant to a standing order or otherwise) any
depository institution maintaining the Collection Account, the Interest Reserve
Account or the Excess Liquidation Proceeds Account (any of the foregoing
accounts listed in this clause (iii), a "Trustee Account"; and any of the Master
Servicer Accounts, the REO Accounts and Trustee Accounts, an "Investment
Account"), to invest, or if it is such depository institution, may itself
invest, the funds held therein (other than, in the case of the Pool Custodial
Account and the Collection Account, the Initial Deposits) in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (x) no later than the Business Day immediately
preceding the next succeeding date on which such funds are required to be
withdrawn from such account pursuant to this Agreement or (y) if and to the
extent that the depository institution maintaining such Investment Account is
the obligor on such investment, no later than the time and date as of which such
funds are required to be withdrawn from such account pursuant to this Agreement
(but in any event prior to distributions on the Certificates or any transfers to
another Investment Account being made on or before the related Distribution
Date); provided that in the case of any Servicing Account, any Reserve Account
or the Defeasance Deposit Account, such investment direction shall be subject to
the related loan documents and applicable law.
All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such) and, in the case of a
Permitted Investment in any Investment Account solely related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s). The
Master Servicer (with respect to Permitted Investments of amounts in the Master
Servicer Accounts) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Accounts), on behalf of the Trustee and, in
the case of any Investment Account solely related to a Serviced Loan
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Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), or the
Trustee in its capacity as such (in the case of any Trustee Account), shall (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is a
"certificated security", "uncertificated security" or "deposit account". The
Trustee hereby designates the Master Servicer (with respect to Permitted
Investments of amounts in the Master Servicer Accounts) and the Special Servicer
(with respect to Permitted Investments of amounts in the REO Accounts), as
applicable, as the Person that shall be the "entitlement holder" and maintain
"control" as set forth under clauses (i) and (ii) above. For purposes of this
Section 3.06(a), (i) the terms "entitlement holder", "security entitlement",
"control" (except with respect to deposit accounts), "certificated security" and
"uncertificated security" shall have the meanings given such terms in Revised
Article 8 (1994 Revision) of the UCC, and the terms "control" (with respect to
deposit accounts) and "deposit account" shall have the meanings given such terms
in Revised Article 9 (1998 Revision) of the UCC, and (ii) "control" of any
Permitted Investment in any Investment Account by the Master Servicer or the
Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee and, in the case of any Investment Account
solely related to a Serviced Loan Combination, the related Serviced Non-Trust
Mortgage Loan Noteholder(s), for purposes of Revised Article 8 (1994 Revision)
of the UCC or Revised Article 9 (1998 Revision) of the UCC, as applicable. If
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (in the case of any
Master Server Account), the Special Servicer (in the case of the REO Accounts)
or the Trustee (in the case of any Trustee Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to at least the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would
not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds
in any of the Master Servicer Accounts, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for each such Investment Account for each related Investment Period (and,
in the case of Servicing Accounts, Reserve Accounts and the Defeasance Deposit
Account, to the extent not otherwise payable to Mortgagors under applicable law
or the related loan documents), shall be for the sole and exclusive benefit of
the Master Servicer and shall be subject to its withdrawal in accordance with
Section 3.03(a), 3.03(d), 3.04(a), 3.04A(b), 3.05(a) or 3.05A, as applicable.
Whether or not the Special Servicer directs the investment of funds in any of
the REO Accounts, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each related Investment Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Trustee directs the
investment of funds in any of the Trustee Accounts, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each related Investment
Period, shall be for the sole and exclusive benefit of the Trustee and shall be
subject to its withdrawal in accordance with Section 3.05(b), 3.05(c) or
3.05(d), as the case may be. If any loss shall be incurred in
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respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of (i) the Servicing Accounts, the Reserve Accounts
and the Defeasance Deposit Account (except to the extent that any investment of
funds with respect thereto is at the direction of a Mortgagor in accordance with
the related loan documents or applicable law) and (ii) the Custodial Accounts),
the Special Servicer (in the case of the REO Accounts) and the Trustee (in the
case of any Trustee Account) shall promptly deposit therein from its own funds,
without right of reimbursement, no later than the end of the related Investment
Period, during which such loss was incurred, the amount of the Net Investment
Loss, if any, for such Investment Account for such Investment Period.
Notwithstanding any of the foregoing provisions of this Section 3.06, no party
shall be required under this Agreement to deposit any loss on a deposit of funds
in an Investment Account if such loss is incurred solely as a result of the
insolvency of the federal or state chartered depository institution or trust
company with which such deposit was maintained so long as such depository
institution or trust company satisfied the conditions set forth in the
definition of "Eligible Account" at the time such deposit was made and also as
of a date no earlier than 30 days prior to the insolvency.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
the Certificateholders entitled to a majority of the Voting Rights allocated to
any Class, shall take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount and the Master Servicer Remittance Amount,
the amounts so invested shall be deemed to remain on deposit in such Investment
Account.
(e) Notwithstanding the foregoing, the Initial Deposits shall remain
uninvested.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer shall use reasonable efforts, consistent with
the Servicing Standard, to cause to be maintained for each Mortgaged Property
that secures a Serviced Mortgage Loan and is not an REO Property, all insurance
coverage as is required under the related Mortgage Loan (except to the extent
that the failure to maintain such insurance coverage is an Acceptable Insurance
Default); provided that, if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer or Special Servicer, as the case may be, shall exercise such
discretion in a manner consistent with the Servicing Standard; and provided,
further, that, if and to the extent that a Mortgage so permits, the Master
Servicer or Special Servicer, as the case may be, shall use reasonable efforts
to require the related Mortgagor to obtain the required insurance coverage from
Qualified Insurers that have, in each such case, the applicable Required Insurer
Rating; and provided, further, that the Master Servicer shall cause to be
maintained, with Qualified Insurers that have, in each such case, the applicable
Required Insurer Rating, for any such Mortgaged Property any such insurance that
the related Mortgagor is required but fails to maintain, but only to the extent
that (i) the Trustee (as mortgagee of record on behalf of the Certificateholders
or, in the case of a Mortgaged
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Property that secures a Serviced Loan Combination, the Certificateholders and
the related Non-Trust Mortgage Loan Noteholder(s)) has an insurable interest,
and (ii) either (A) such insurance is available at a commercially reasonable
rate, or (B) solely in the case of all-risk insurance or other insurance that
covers losses from acts of terrorism, the failure by the Mortgagor to maintain
such insurance has not been determined by the Special Servicer, based on due
inquiry in accordance with the Servicing Standard, to constitute an Acceptable
Insurance Default. In determining whether any insurance coverage is available or
is available at reasonable rates, the Master Servicer or Special Servicer, as
applicable, shall, to the extent consistent with the Servicing Standard, be
entitled to rely on insurance consultants in making such determination and any
such determinations by the Master Servicer or Special Servicer, as the case may
be must be made not less frequently (but need not be made more frequently) than
annually (or such other lesser period as may be required by the Servicing
Standard) but in any event shall be made at the approximate date on which the
Master Servicer or Special Servicer, as the case may be, receives notice of the
renewal, replacement or cancellation of coverage. Subject to Sections 6.11(b)
and 6.12(b), the related Serviced Loan Combination Controlling Party (in the
case of a Mortgaged Property that secures a Serviced Loan Combination) or the
Controlling Class Representative (in the case of any other Mortgaged Property
securing a Serviced Mortgage Loan) may request that earthquake insurance be
secured for such Mortgaged Property by the related Mortgagor, to the extent that
(i) such insurance may be obtained at a commercially reasonable price and (ii)
the related loan documents and applicable law give the mortgagee the right to
request such insurance coverage and such loan documents require the Mortgagor to
obtain earthquake insurance at the request of the mortgagee. Subject to Section
3.17(a), the Special Servicer, in accordance with the Servicing Standard, shall
also cause to be maintained for each Administered REO Property no less insurance
coverage than was previously required of the Mortgagor under the related
Mortgage; provided that such insurance is available at commercially reasonable
rates and the subject hazards are at the time commonly insured against for
properties similar to the subject Administered REO Property located in or around
the region in which such Administered REO Property is located (or, in the case
of all-risk insurance or other insurance that covers acts of terrorism, the
Special Servicer has determined, based on due inquiry in accordance with the
Servicing Standard, that either such insurance is available at a commercially
reasonable rate or the subject hazards are at the time commonly insured against
for properties similar to the subject Administered REO Property located in or
around the region in which such Administered REO Property is located); and
provided, further, that all such insurance shall be obtained from Qualified
Insurers that have, in each such case, the applicable Required Insurer Rating.
All such insurance policies shall contain (if they insure against loss to
property and do not relate to an REO Property) a "standard" mortgagee clause,
with loss payable to the Master Servicer (in the case of insurance maintained in
respect of Serviced Mortgage Loans, including Specially Serviced Mortgage
Loans), and shall be in the name of the Special Servicer (in the case of
insurance maintained in respect of Administered REO Properties), on behalf of
the Trustee. If the Special Servicer is in the process of making a
determination, in the case of all-risk insurance or other insurance that covers
losses from acts of terrorism, as to whether the failure by the Mortgagor under
any Serviced Mortgage Loan to maintain such insurance constitutes an Acceptable
Insurance Default, then, during the period of such evaluation by the Special
Servicer (or, to the extent applicable, during the period that the Special
Servicer is obtaining the consent under Section 6.11 of the Controlling Class
Representative or, with respect to a Serviced Loan Combination, obtaining the
consent under Section 6.12 of the Serviced Loan Combination Controlling Party)
the Master Servicer shall not be liable for any loss related to its failure to
require the related Mortgagor to maintain terrorism insurance and shall not be
in default of its obligations hereunder as a result of such failure to maintain
terrorism insurance (provided, that the Master Servicer used reasonable efforts,
in accordance with the Servicing Standard, to cause such Mortgagor to maintain
such insurance
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and has given prompt written notice to the Special Servicer of
its determination that it will not be successful in its efforts to cause the
Mortgagor to obtain such insurance, along with its determination, and any
information in its possession, regarding the availability and cost of such
insurance). The Special Servicer shall promptly notify the Master Servicer of
each such determination by the Special Servicer under this paragraph.
Any amounts collected by the Master Servicer or the Special Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case subject to the rights of any
tenants and ground lessors, as the case may be, and in each case in accordance
with the terms of the related Mortgage and the Servicing Standard) shall be
deposited in the applicable Custodial Account in accordance with Section 3.04(a)
or 3.04A(a), as applicable, in the case of amounts received in respect of a
Serviced Mortgage Loan, or in the applicable REO Account in accordance with
Section 3.16(b), in the case of amounts received in respect of an Administered
REO Property. Any cost incurred by the Master Servicer or the Special Servicer
in maintaining any such insurance (including any earthquake insurance maintained
at the request of a Serviced Loan Combination Controlling Party or the
Controlling Class Representative, as applicable) shall not, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
the unpaid principal balance or Stated Principal Balance of the related Serviced
Mortgage Loan(s) or REO Mortgage Loan(s), notwithstanding that the terms of such
loan so permit, but shall be recoverable by the Master Servicer or the Special
Servicer, as applicable, as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer shall obtain
and maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Serviced
Mortgage Loans and/or Administered REO Properties that it is required to service
and administer, then, to the extent such policy (i) is obtained from a Qualified
Insurer having (or whose obligations are guaranteed or backed, in writing, by an
entity having) the applicable Required Insurer Rating, and (ii) provides
protection equivalent to the individual policies otherwise required, then the
Master Servicer or the Special Servicer, as the case may be, shall conclusively
be deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties and/or the subject Administered
REO Properties. Such blanket policy or master force placed policy may contain a
deductible clause (not in excess of a customary amount), in which case the
Master Servicer or the Special Servicer, as appropriate, shall, if there shall
not have been maintained on the related Mortgaged Property or subject
Administered REO Property an individual hazard insurance policy complying with
the requirements of Section 3.07(a), and there shall have been one or more
losses that would have been covered by such individual policy, promptly deposit
into the applicable Custodial Account from its own funds the amount not
otherwise payable under the blanket policy or master force placed policy because
of the deductible clause therein, to the extent that any such deductible exceeds
the deductible limitation that pertained to the related Serviced Mortgage Loan
(or in the absence of any such deductible limitation, the deductible limitation
for an individual policy which is consistent with the Servicing Standard). The
Master Servicer or the Special Servicer, as appropriate, shall prepare and
present, on behalf of itself, the Trustee, the Certificateholders and, in the
case of a Mortgaged Property that secures a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s), claims under any such blanket
policy or master force placed policy in a timely fashion in accordance with the
terms of such policy.
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(c) Subject to the third paragraph of this Section 3.07(c), each of
the Master Servicer and the Special Servicer shall at all times during the term
of this Agreement (or, in the case of the Special Servicer, at all times during
the term of this Agreement in which Specially Serviced Mortgage Loans and/or
Administered REO Properties are part of the Trust Fund) keep in force with
Qualified Insurers that, in each such case, has (or whose obligations are in
each such case guaranteed or backed, in writing, by an entity that has) the
applicable Required Insurer Rating, a fidelity bond, which fidelity bond shall
be in such form and amount as would permit it to be a qualified Xxxxxx Xxx
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not cause an Adverse Rating Event with respect to any Class of
Certificates (as evidenced in writing from each Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provision if an Affiliate thereof has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as the case may be.
Subject to the third paragraph of this Section 3.07(c), each of the
Master Servicer and the Special Servicer shall at all times during the term of
this Agreement (or, in the case of the Special Servicer, at all times during the
term of this Agreement in which Specially Serviced Mortgage Loans and/or
Administered REO Properties are part of the Trust Fund) also keep in force with
Qualified Insurers that, in each such case, has (or whose obligations are in
each such case guaranteed or backed, in writing, by an entity that has) the
applicable Required Insurer Rating, a policy or policies of insurance covering
loss occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not cause an Adverse Rating Event with respect to any Class of
Certificates (as evidenced in writing from each Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provisions if an Affiliate thereof has such insurance and, by the
terms of such policy or policies, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be.
Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer (or its direct corporate
parent if such parent is responsible for the obligations of the Master Servicer
or Special Servicer, as applicable), as the case may be, are rated at least "A"
from S&P and "A" from Fitch (or, in the case of any such Rating Agency, such
lower rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates rated by such Rating Agency, as evidenced in writing by
such Rating Agency), such Person may self-insure with respect to all or a
portion of the risks described in this Section 3.07(c).
(d) In the event that either of the Master Servicer or the Special
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under any Environmental Insurance Policy in respect of
any Environmentally Insured Mortgage Loan (other than, if applicable, an Outside
Serviced Trust Mortgage Loan) for which the Mortgagor has not filed a claim or
in respect of an Administered REO Property, the Master Servicer shall notify the
Special Servicer if such Mortgage Loan is a Specially Serviced Mortgage Loan,
and the Special Servicer shall notify the Master Servicer in all cases. Upon
becoming aware of such Insured Environmental Event, the Master Servicer, in the
case of a Performing Serviced Mortgage Loan, and the Special Servicer, in the
case of a Specially Serviced Mortgage Loan or an Administered REO Property, in
accordance with the terms of such Environmental Insurance Policy and the
Servicing Standard, shall timely make a claim thereunder
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with the appropriate insurer and shall take such other actions necessary under
such Environmental Insurance Policy in order to realize the full value thereof
for the benefit of the Certificateholders. With respect to each Environmental
Insurance Policy in respect of an Environmentally Insured Mortgage Loan (other
than, if applicable, an Outside Serviced Trust Mortgage Loan), the Master
Servicer (in the case of any such Mortgage Loan that is a Performing Serviced
Mortgage Loan) and the Special Servicer (in the case of any such Mortgage Loan
that is a Specially Serviced Mortgage Loan or in the case of an Administered REO
Property) shall each review and familiarize itself with the terms and conditions
relating to enforcement of claims and shall, in the event the Master Servicer or
the Special Servicer has actual knowledge of an Insured Environmental Event
giving rise to a claim under such policy, monitor the dates by which any claim
must be made or any action must be taken under such policy to realize the full
value thereof for the benefit of the Certificateholders.
The Master Servicer (in the case of Performing Serviced Mortgage
Loans) and the Special Servicer (in the case of Specially Serviced Mortgage
Loans and Administered REO Properties) shall each abide by the terms and
conditions precedent to payment of claims under the Environmental Insurance
Policies with respect to the Environmentally Insured Mortgage Loans (other than,
if applicable, any Outside Serviced Trust Mortgage Loan) and take all such
actions as may be required to comply with the terms and provisions of such
policies in order to maintain such policies in full force and effect and to make
claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan (other than, if applicable,
an Outside Serviced Trust Mortgage Loan), then the party receiving such notice
shall, within five (5) Business Days after receipt thereof, provide written
notice of such termination to the other such party and the Trustee. Upon receipt
of such notice, the Master Servicer, with respect to a Performing Serviced
Mortgage Loan, or the Special Servicer, with respect to a Specially Serviced
Mortgage Loan or an Administered REO Property, shall address such termination in
accordance with Section 3.07(a). Any legal fees, premiums or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with
enforcing the obligations of the Mortgagor under any Environmental Insurance
Policy or a resolution of such termination of an Environmental Insurance Policy
shall be paid by the Master Servicer and shall be reimbursable to it as a
Servicing Advance.
The Master Servicer (with respect to Performing Serviced Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans) shall monitor the actions, and enforce the obligations, of the related
Mortgagor under each Environmentally Insured Mortgage Loan (other than, if
applicable, an Outside Serviced Trust Mortgage Loan) insofar as such
actions/obligations relate to (i) to the extent consistent with Section 3.07(a),
the maintenance (including, without limitation, any required renewal) of an
Environmental Insurance Policy with respect to the related Mortgaged Property or
(ii) environmental testing or remediation at the related Mortgaged Property.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) If, with respect to any Performing Serviced Mortgage Loan, the
Master Servicer receives a request from a Mortgagor regarding the transfer of
the related Mortgaged Property to, and assumption of such Performing Serviced
Mortgage Loan by, another Person and/or transfers of certain interests in such
Mortgagor (including, without limitation, sales or transfers of the related
Mortgaged
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Property (in full or in part) or the sale, transfer, pledge or hypothecation of
direct or indirect interests in the related Mortgagor or its owners) or, in the
case of a Performing Serviced Mortgage Loan that by its terms permits transfer
or assumption without the consent of the lender so long as certain conditions
are satisfied, a request by the related Mortgagor for a determination that such
conditions have been satisfied, then the Master Servicer shall promptly notify
the Special Servicer of such request, shall evaluate (consistent with the
Servicing Standard) the experience and financial condition of the proposed
transferee and the status of any conditions to transfer or assumption (as
described above) and prepare a report in connection therewith and shall deliver
to the Special Servicer such report and any documents or other materials that
the Master Servicer shall have received regarding the proposed transfer and, if
applicable, the proposed assumption. The Special Servicer shall have the right
hereunder, within 15 days (or, in the case of a consent to a determination as to
whether the conditions precedent to the subject transfer or assumption have been
satisfied, within 10 days, or within such longer period as may be necessary to
obtain any required consent pursuant to Section 6.11 or 6.12, as and if
applicable) of receipt of such recommendation and supporting materials and any
other materials reasonably requested by the Special Servicer, in accordance with
the Servicing Standard, to withhold or grant consent to any such request for
such transfer and/or assumption and/or to make a determination as to whether the
conditions to transfer or assumption (as described above) have been satisfied,
as applicable, each in accordance with the terms of the subject Performing
Serviced Mortgage Loan and this Agreement; provided that any grant of consent on
the part of the Special Servicer shall be subject to Section 3.08(d), Section
6.11 and/or Section 6.12, in each case if and as applicable. If the Special
Servicer does not respond within such 15-day period, 10-day period or such
longer period as set forth above, as the case may be, such party's consent shall
be deemed granted; provided, that if the Special Servicer's consent is not
withheld, granted or deemed granted within the aforementioned 15-day period or
10-day period, as applicable, because the Special Servicer is in the process of
obtaining a consent required pursuant to Section 6.11 and/or Section 6.12, as
applicable, then the Special Servicer shall provide notice to the Master
Servicer of such process and the estimated time period for completion thereof.
If the Special Servicer, in accordance with the Servicing Standard, (i)
withholds or denies its consent to any such request for such transfer and/or
assumption with respect to any Performing Serviced Mortgage Loan and/or (ii)
determines, with respect to any Performing Serviced Mortgage Loan that by its
terms permits transfer and/or assumption without lender consent so long as
certain conditions are satisfied, that such conditions have not been satisfied,
then, in each such case, the Special Servicer shall notify the Master Servicer
in writing of such determination, and the Master Servicer shall notify the
related Mortgagor that the requested transfer and/or assumption will not be
permitted and shall restrict the requested transfer and/or assumption of the
subject Performing Serviced Mortgage Loan in accordance with the Servicing
Standard. If the Special Servicer consents or is deemed to consent to such
proposed transfer and/or assumption and/or determines that the conditions to
transfer or assumption have been satisfied, the Master Servicer shall process
such request of the related Mortgagor; and, in the case of a transfer of the
related Mortgaged Property to, and assumption of such Performing Serviced
Mortgage Loan by, another Person, the Master Servicer (subject to Section
3.08(d)) shall be authorized to enter into an assumption or substitution
agreement with the Person, which shall be a Single Purpose Entity, to whom the
related Mortgaged Property has been or is proposed to be conveyed and/or release
the original Mortgagor from liability under such Performing Serviced Mortgage
Loan and substitute as obligor thereunder the Person to whom the related
Mortgaged Property has been or is proposed to be conveyed; provided, however,
that the Master Servicer shall not enter into any such agreement to the extent
that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor
Trust Event or create any lien on a Mortgaged Property that is senior to, or on
parity with, the lien of the related Mortgage. The Master Servicer shall notify
the Trustee, the Special Servicer, each Rating Agency, the Controlling Class
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Representative and, in the case of a Serviced Loan Combination that consists of
Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), of any assumption or substitution agreement executed pursuant to
this Section 3.08(a) and shall forward thereto a copy of such agreement together
with a Review Package. Subject to the terms of the related loan documents, no
assumption of a Cross-Collateralized Mortgage Loan shall be made without the
assumption of all other Serviced Trust Mortgage Loans making up the related
Cross-Collateralized Group. Further, subject to the terms of the related loan
documents and applicable law, no assumption of a Serviced Mortgage Loan shall be
made or transfer of interest in a Mortgagor approved, unless all costs in
connection therewith, including any arising from seeking Rating Agency
confirmation, are paid by the related Mortgagor.
(b) If, with respect to a Specially Serviced Mortgage Loan, the Master
Servicer receives a request from a Mortgagor for consent to a transfer of the
related Mortgaged Property and assumption of such Specially Serviced Mortgage
Loan and/or consent to a transfer of interests in the related Mortgagor
(including, without limitation, sales or transfers of the related Mortgaged
Property (in full or in part) or the sale, transfer, pledge or hypothecation of
direct or indirect interests in the related Mortgagor or its owners) or in the
case of a Specially Serviced Mortgage Loan that by its terms permits transfer or
assumption without the consent of the lender so long as certain conditions are
satisfied, a request by the related Mortgagor for a determination that such
conditions have been satisfied, the Master Servicer shall promptly notify the
Special Servicer of such request and deliver to the Special Servicer any
documents that the Master Servicer shall have received regarding the proposed
transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section
6.12, in each case if and as applicable, the Special Servicer shall determine
whether to grant such consent, whether the conditions to transfer or assumption
(as described above) have been satisfied and/or whether to enforce any
restrictions on such transfer and/or assumption contained in the related loan
documents, as applicable, each in accordance with the Servicing Standard.
Upon consent by the Special Servicer to any proposed transfer of a
Mortgaged Property and assumption by the proposed transferee of the related
Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer
shall process the request of the related Mortgagor for such transfer and
assumption and shall be authorized to enter into an assumption or substitution
agreement with the Person, which shall be a Single Purpose Entity, to whom the
related Mortgaged Property has been or is proposed to be conveyed and/or release
the original Mortgagor from liability under the related Serviced Mortgage Loan
and substitute as obligor thereunder the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed; provided, however, that the
Special Servicer shall not enter into any such agreement to the extent that any
terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust
Event or create any lien on a Mortgaged Property that is senior to, or on parity
with, the lien of the related Mortgage. The Special Servicer shall notify the
Trustee, the Master Servicer, each Rating Agency, the Controlling Class
Representative and, with respect to a Serviced Loan Combination, the related
Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or
substitution agreement executed pursuant to this Section 3.08(b) and shall
forward thereto a copy of such agreement. Subject to the terms of the related
loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be
made without the assumption of all other Serviced Trust Mortgage Loans making up
the related Cross-Collateralized Group. Further, subject to the terms of the
related loan documents and applicable law, no assumption of a Serviced Mortgage
Loan shall be made unless all costs in connection therewith, including any
arising from seeking Rating Agency confirmation, are paid by the related
Mortgagor.
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As used in this Section 3.08, the terms "sale" and "transfer" shall
include the matters contemplated by the parentheticals in the first sentence of
Section 3.08(a).
(c) If, with respect to a Performing Serviced Mortgage Loan, the
Master Servicer receives a request from the related Mortgagor regarding a
further encumbrance of the related Mortgaged Property or of an interest in the
related Mortgagor (including, without limitation, any mezzanine financing of the
related Mortgagor or any direct or indirect owners of the related Mortgagor or
the Mortgaged Property or any sale, issuance or transfer of preferred equity in
the Mortgagor or its owners or, in the case of a Performing Serviced Mortgage
Loan that by its terms permits further encumbrance without the consent of the
lender provided certain conditions are satisfied, a request by the related
Mortgagor for a determination that such conditions have been satisfied), then
the Master Servicer shall promptly obtain relevant information for purposes of
evaluating such request. If the Master Servicer determines, consistent with the
Servicing Standard, to approve such further encumbrance or that the conditions
precedent to such further encumbrance have been satisfied, as applicable, then
the Master Servicer shall provide to the Special Servicer a written copy of such
recommendation (which shall include the reason therefor) and the materials upon
which such recommendation is based. The Special Servicer shall have the right
hereunder, within 15 days (or, in the case of a consent to a determination as to
whether the conditions precedent to a further encumbrance have been satisfied,
within 10 days), or within such longer period as may be necessary to obtain any
required consent pursuant to Section 6.11 or 6.12, as and if applicable, of
receipt of such recommendation and supporting materials and any other materials
reasonably requested by the Special Servicer, to reasonably withhold or, subject
to Section 3.08(d) and, further, subject to the Special Servicer obtaining any
consent to the extent required pursuant to Section 6.11 and/or Section 6.12, in
each case if and as applicable, grant consent to any such request for such
further encumbrance of the related Mortgaged Property or of an interest in the
related Mortgagor or to object or consent to the determination by the Master
Servicer as to whether the conditions to further encumbrance (as described
above) have been satisfied, as applicable, each in accordance with the terms of
such Performing Serviced Mortgage Loan and this Agreement and subject to the
Servicing Standard. If the Special Servicer does not respond within such 15-day
period, 10-day period or such longer period as set forth above, as the case may
be, such party's consent shall be deemed granted; provided, that if the Special
Servicer's consent is not withheld, granted or deemed granted within the
aforementioned 15-day period or 10-day period, as applicable, because the
Special Servicer is in the process of obtaining a consent required pursuant to
Section 6.11 and/or Section 6.12, as applicable, then the Special Servicer shall
provide notice to the Master Servicer of such process and the estimated time
period for completion thereof. If the Special Servicer consents or is deemed to
have consented to such further encumbrance of the related Mortgaged Property or
of an interest in the related Mortgagor, as applicable, the Master Servicer
shall process such request of the related Mortgagor. If the Special Servicer
does not consent to, and is not deemed to have consented to, such further
encumbrance, then the Master Servicer, on behalf of the Trustee (as mortgagee of
record on behalf of the Certificateholders and, with respect to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall,
to the extent permitted by applicable law, enforce the restrictions contained in
the related loan documents on further encumbrances of the related Mortgaged
Property and/or of an interest in the related Mortgagor, as applicable. If the
Special Servicer, in accordance with the Servicing Standard, within the
requisite time period, (i) objects to the determination by the Master Servicer
with respect to a Performing Serviced Mortgage Loan (which by its terms permits
further encumbrance without lender consent provided certain conditions are
satisfied) that
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the subject conditions have been satisfied, or (ii) determines with respect to
any other Serviced Mortgage Loan (which by its terms permits further encumbrance
without lender consent provided certain conditions are satisfied) that the
subject conditions have not been satisfied, then, in each such case, the Special
Servicer shall notify the Master Servicer in writing of such objection or
determination, as applicable, and the Master Servicer shall notify the related
Mortgagor that the requested further encumbrance will not be permitted and shall
restrict the requested further encumbrance of the subject Serviced Mortgage Loan
in accordance with the Servicing Standard. To the extent permitted by the
applicable loan documents and applicable law, the Master Servicer may charge the
related Mortgagor (and retain to the extent permitted under Section 3.11) a fee
in connection with any enforcement or waiver contemplated in this paragraph of
subsection (c).
With respect to any Specially Serviced Mortgage Loan, the Special
Servicer, on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) shall, to the extent permitted by applicable law, enforce the
restrictions contained in the related loan documents on further encumbrances of
the related Mortgaged Property and/or of interests in the related Mortgagor, as
applicable, and shall, with respect to Specially Serviced Mortgage Loans that by
their terms permit further encumbrance without mortgagee consent so long as
certain conditions are satisfied, make all determinations as to whether such
conditions have been satisfied, and shall process all documentation in
connection therewith, unless the Special Servicer has determined, in its
reasonable, good faith judgment, that waiver of such restrictions or such
conditions, as the case may be, would be in accordance with the Servicing
Standard (as evidenced by an Officer's Certificate setting forth the basis for
such determination delivered to the Trustee, the Master Servicer, each Rating
Agency and, in the case of a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s); provided that any such waiver of such
restrictions shall be subject to Section 3.08(d) and Section 6.11 and/or Section
6.12, in each case if and as applicable. To the extent permitted by the
applicable loan documents and applicable law, the Special Servicer may charge
the related Mortgagor (and retain to the extent permitted under Section 3.11) a
fee in connection with any enforcement or waiver contemplated in this paragraph
of subsection (c).
As used in this Section 3.08, the term "encumbrance" shall include the
matters contemplated by the parentheticals in the first sentence of this Section
3.08(c).
(d) Notwithstanding anything to the contrary contained in this Section
3.08, but subject to the related loan documents and applicable law: (i) if (A)
the then unpaid principal balance of the subject Serviced Trust Mortgage Loan,
together with any other Serviced Trust Mortgage Loans that are
cross-collateralized therewith, is at least equal to the lesser of (1)
$35,000,000 and (2) 5% of the then aggregate principal balance of the Mortgage
Pool or (B) the subject Serviced Trust Mortgage Loan is then one of the ten (10)
largest Trust Mortgage Loans in the Mortgage Pool, then neither the Master
Servicer nor the Special Servicer, as applicable, shall waive any restrictions
contained in the related Mortgage on transfers of the related Mortgaged Property
or on transfers of interests in the related Mortgagor, and (ii) if (W) the then
unpaid principal balance of the subject Serviced Trust Mortgage Loan, together
with any other Serviced Trust Mortgage Loans that are cross-collateralized
therewith, is at least equal to the lesser of (1) $20,000,000 and (2) 2% of the
then aggregate principal balance of the Mortgage Pool or (X) the subject
Serviced Trust Mortgage Loan is then one of the ten (10) largest Trust Mortgage
Loans in the Mortgage Pool or (Y) the aggregate loan-to-value ratio of the
subject Serviced Trust Mortgage Loan (together with any additional loans that
would further encumber the related Mortgaged Property and/or interests in the
related Mortgagor) would be equal to or greater than 85% or (Z) the aggregate
debt service coverage ratio of the related Mortgaged Property (taking into
account any
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additional loans that would further encumber the related Mortgaged
Property and/or interests in the related Mortgagor) would be less than 1.20x,
then neither the Special Servicer nor the Master Servicer shall waive any
restrictions contained in the related Mortgage on further encumbrances of the
related Mortgaged Property or of interests in the related Mortgagor, unless, in
the case of either (i) or (ii) above, the Master Servicer or the Special
Servicer, as the case may be, shall have received prior written confirmation
from S&P (and, if a Serviced Loan Combination is involved and includes a
Specially Designated Securitized Non-Trust Mortgage Loan, and if any related
Specially Designated Non-Trust Securities are rated by Xxxxx'x, from Xxxxx'x)
that such action would not result in an Adverse Rating Event with respect to any
Class of Certificates or any class of Specially Designated Non-Trust Mortgage
Loan Securities rated by such rating agency. Also notwithstanding anything to
the contrary contained in this Section 3.08, but subject to the related loan
documents and applicable law, if the subject Serviced Trust Mortgage Loan is
then one of the ten largest Trust Mortgage Loans in the Mortgage Pool, then
neither the Master Servicer nor the Special Servicer, as applicable, shall waive
any restrictions contained in the related Mortgage on transfers or further
encumbrances of the related Mortgaged Property or on transfers of interests in
the related Mortgagor, unless the Master Servicer or the Special Servicer, as
the case may be, shall have obtained prior written confirmation from Fitch that
such action would not result in an Adverse Rating Event with respect to any
Class of Certificates rated by such Rating Agency. Neither the Master Servicer
nor the Special Servicer has the authority to perform any of the actions set
forth above in this paragraph with respect to an Outside Serviced Trust Mortgage
Loan. In connection with any request for rating confirmation from a rating
agency pursuant to this paragraph of Section 3.08(d), the Master Servicer or the
Special Servicer, as the case may be, shall deliver a Review Package to such
rating agency. Further, subject to the terms of the related loan documents and
applicable law, no waiver of a restriction contained in the related Mortgage on
transfers of the related Mortgaged Property or interests in the related
Mortgagor or on further encumbrances thereof may be waived by the Master
Servicer or the Special Servicer, as applicable, unless all costs in connection
therewith, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor. To the extent not collected from the related
Mortgagor (or from the Depositor or the related Unaffiliated Mortgage Loan
Seller pursuant to or as contemplated by Section 2.03), any rating agency
charges in connection with the foregoing shall be paid by the Master Servicer as
a Servicing Advance.
Notwithstanding the foregoing, with respect to any Outside Serviced
Trust Mortgage Loan, in the event that any action set forth in clause (i) or
(ii) of the first sentence of the preceding paragraph regarding such Trust
Mortgage Loan would require written confirmation from a Rating Agency that such
action would not result in an Adverse Rating Event with respect to any Class of
Certificates rated by such Rating Agency in accordance with clause (i) or (ii)
of the first sentence of the preceding paragraph if such Trust Mortgage Loan
were a Serviced Trust Mortgage Loan, then the Controlling Class Representative
(and, additionally, the Master Servicer and the Special Servicer, if applicable)
shall not consent to a waiver of any restrictions contained in the related
Mortgage on transfers of the related Mortgaged Property or on transfers of
interests in the related Mortgagor or to a waiver of any restrictions contained
in the related Mortgage on further encumbrances of the related Mortgaged
Property or of interests in the related Mortgagor, in each case to the extent it
is permitted to do so under the related Outside Servicing Agreement and/or the
related Co-Lender Agreement, unless it has obtained written confirmation from
each Rating Agency that such action would not result in an Adverse Rating Event
with respect to any Class of Certificates rated by such Rating Agency. Upon
being asked to consent to any action set forth in the preceding sentence (i) if
the party initially in receipt of such request for consent is the Controlling
Class Representative, the Controlling Class Representative shall request from
the Master Servicer, and the Master Servicer shall thereupon provide, a
determination to the Controlling Class Representative as to, and (ii) if the
party initially in receipt of such request for consent is the Master Servicer,
the Master Servicer shall forward such request to the Controlling Class
Representative together with a determination as to, and (iii) if the party
initially in receipt of such request for consent is the Special Servicer, the
Special Servicer shall forward such request to the Master Servicer and the
Controlling Class Representative, and the Master Servicer shall thereupon
provide a determination
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to the Controlling Class Representative as to, in the case of (i), (ii) and
(iii) above, whether such action would require written confirmation from each
Rating Agency that such action would not result in an Adverse Rating Event with
respect to any Class of Certificates rated by such Rating Agency in accordance
with clause (i) or clause (ii) of the first sentence of the preceding paragraph
if such Trust Mortgage Loan were a Serviced Trust Mortgage Loan (and the
Controlling Class Representative shall be entitled to conclusively rely on such
determination by the Master Servicer). Further, subject to the terms of the
related loan documents and applicable law, the Controlling Class Representative
shall not affirmatively consent to a waiver of any restrictions contained in the
related Mortgage on transfers of the related Mortgaged Property or on transfers
of interests in the related Mortgagor or to a waiver of any restrictions
contained in the related Mortgage on further encumbrances of the related
Mortgaged Property or of interests in the related Mortgagor, unless all costs in
connection therewith, including any arising from seeking Rating Agency
confirmation, are paid by the related Mortgagor (unless requiring payment of
such costs by the Mortgagor is contrary to the explicit terms of the related
loan documents). To the extent not payable by and collected from the related
Mortgagor, any rating agency charges in connection with the foregoing shall be
paid by the Master Servicer by withdrawing the amount of such charges from the
Pool Custodial Account.
If and to the extent that any expenses paid by the Master Servicer in
connection with the actions contemplated by this Section 3.08(d) would result in
the failure of any one or more Holder(s) of Regular Interest Certificates to
receive any amount of principal or interest at the related Pass-Through Rate to
which such Holder(s) are entitled (in each case by the time any such amounts are
due and payable to such Holder(s)), then such amounts shall be deemed to have
been distributed to such Holder(s) from REMIC III, as of the time paid by the
Master Servicer, and then paid by such Holder(s) and not by any of the REMIC
Pools.
(e) Notwithstanding anything herein to the contrary, the Master
Servicer shall approve and close, without the consent of the Special Servicer,
all initial syndications of tenant-in-common interests, provided such
syndications are specifically permitted by and in accordance with the related
loan documents for any Serviced Mortgage Loan that is not a Specially Serviced
Mortgage Loan. Upon completion of any such initial transfer, the Master Servicer
shall promptly provide notice by electronic mail thereof to the Special Servicer
and the Controlling Class Representative, which notice shall also (i) advise the
Special Servicer and the Controlling Class Representative as to the total number
of transfers with respect to such Serviced Mortgage Loan that the Master
Servicer has approved and closed as of such date and the expiration date (if
any) by which such transfer(s) must occur pursuant to the related loan
documents, and (ii) advise the Special Servicer and the Controlling Class
Representative of when, with respect to any such Serviced Mortgage Loan, such
tenant-in-common syndication is complete. Any request for a modification to or
extension of the final initial syndication date respecting any such
tenant-in-common transfers or increase in the permitted number of
tenant-in-common interests under the initial syndication shall be processed and
approved solely by the Special Servicer, which shall promptly notify the
Controlling Class Representative of any such modification or extension.
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SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals; Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b), 3.09(c),
3.09(d), 6.11 and 6.12, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Specially Serviced Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including
pursuant to Section 3.20; provided that neither the Master Servicer nor the
Special Servicer shall, with respect to any Serviced Mortgage Loan that
constitutes an ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
ARD Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, necessary, appropriate and consistent with the Servicing Standard or
(ii) all other amounts due under such ARD Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest accrued on Advances. Subject
to Section 3.11(h), the Special Servicer shall request that the Master Servicer
advance all costs and expenses incurred by it in any such proceedings, and the
Master Servicer shall be entitled to reimbursement therefor as provided in
Section 3.05(a) or Section 3.05A, as applicable. The Special Servicer shall be
responsible, consistent with the Servicing Standard, for determining whether to
exercise any rights it may have under the cross-collateralization and/or
cross-default provisions of a Cross-Collateralized Mortgage Loan. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Certificateholders and, in the case of a Mortgaged
Property that secures a Serviced Loan Combination, on behalf of the affected
Serviced Non-Trust Mortgage Loan Noteholder(s), to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value of such property, as determined by the Special Servicer in its
reasonable and good faith judgment taking into account the factors described in
Section 3.18 and the results of any appraisal obtained as provided below in this
Section 3.09, all such bids to be made in a manner consistent with the Servicing
Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially Serviced Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may have an appraisal
performed with respect to such property by an Independent Appraiser or other
expert in real estate matters, which appraisal shall take into account the
factors specified in Section 3.18, and the cost of which appraisal shall be
covered by, and be reimbursable as, a Servicing Advance; provided that if the
Master Servicer intends to obtain an appraisal in connection with the foregoing,
the Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal.
If any Serviced Mortgage Loan or Serviced Loan Combination becomes a
Required Appraisal Loan, then the Special Servicer shall (i) obtain or conduct,
as applicable, a Required Appraisal within 60 days (or, in the case of a
Serviced Loan Combination, such shorter time period (if any) as may be required
under the related Co-Lender Agreement) of such occurrence (unless a Required
Appraisal was obtained or conducted, as applicable, with respect to such
Required Appraisal Loan within the prior 12 months and the Special Servicer
reasonably believes, in accordance with the Servicing Standard, that
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no material change has subsequently occurred with respect to the related
Mortgaged Property that would draw into question the applicability of such
Required Appraisal) and (ii) obtain or conduct, as applicable, an update of the
most recent Required Appraisal approximately 12 months following the most recent
Required Appraisal or subsequent update thereof for so long as such Serviced
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) or such
Serviced Loan Combination, as the case may be, remains a Required Appraisal
Loan. The Special Servicer shall deliver copies of all such Required Appraisals
and updated Required Appraisals to the Trustee, the Master Servicer and, in the
case of a Mortgaged Property that secures a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s), in each such case, promptly
following the Special Servicer's receipt of the subject appraisal, and, upon
request, to the Controlling Class Representative. Based on each such Required
Appraisal and updated Required Appraisal, the Special Servicer shall (monthly,
on each related Determination Date, until the subject Required Appraisal Loan
ceases to be such) calculate and notify the Trustee, the Master Servicer, the
Controlling Class Representative, and, in the case of any Mortgaged Property
that secures a Serviced Loan Combination, the related Serviced Non-Trust
Mortgage Loan Noteholder(s), of any resulting Appraisal Reduction Amount in
respect of the subject Required Appraisal Loan. Such calculations by the Special
Servicer shall be subject to review and confirmation by the Master Servicer,
provided that the Master Servicer may rely on any information provided by the
Special Servicer. The Master Servicer shall, at the direction of the Special
Servicer, advance the cost of each such Required Appraisal and updated Required
Appraisal; provided, however, that such expense will be subject to reimbursement
to the Master Servicer as a Servicing Advance out of the related Custodial
Account pursuant to Section 3.05(a) or Section 3.05A, as applicable. At any time
that an Appraisal Reduction Amount exists with respect to any Required Appraisal
Loan, the related Serviced Loan Combination Controlling Party (in the case of a
Serviced Loan Combination or related REO Property) or the Controlling Class
Representative (in all other cases involving a Serviced Mortgage Loan or an
Administered REO Property), as applicable, may, at its own expense, obtain and
deliver to the Master Servicer, the Special Servicer and the Trustee an
appraisal that is reasonably satisfactory to the Special Servicer and satisfies
the requirements of a "Required Appraisal", and upon the written request of the
related Serviced Loan Combination Controlling Party or the Controlling Class
Representative, as applicable, the Special Servicer shall recalculate the
Appraisal Reduction Amount in respect of the subject Required Appraisal Loan
based on such appraisal delivered by such party and shall notify the Trustee,
the Master Servicer, the Controlling Class Representative and, in the case of a
Serviced Loan Combination, the related Serviced Loan Combination Controlling
Party, of such recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) under such circumstances, in such manner or pursuant to such
terms as would, in the reasonable, good faith judgment of the Special Servicer
(exercised in accordance with the Servicing Standard), (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (unless the portion of such Mortgaged Property
that is not treated as "foreclosure property" and that is held by a REMIC Pool
at any given time constitutes not more than a de minimis amount of the assets of
such REMIC Pool within the meaning of Treasury regulations section
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust Fund to the imposition of any federal income taxes under the
Code. Subject to the foregoing, however, a Mortgaged Property may be acquired
through a single member limited liability company if the Special Servicer
determines that such an action is appropriate to protect the Trust (and,
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in the case of a Mortgaged Property that secures a Serviced Loan Combination,
the related Non-Trust Mortgage Loan Noteholder(s)) from potential liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal property
as part of the Trust Fund will not cause the imposition of a tax on any
REMIC Pool under the REMIC Provisions or cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee (and, in the case of a Mortgaged Property that secures a Serviced Loan
Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), obtain title to a Mortgaged Property by foreclosure, deed in
lieu of foreclosure or otherwise, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders (and, in the case of a Mortgaged Property that secures
a Serviced Loan Combination, on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), could, in the reasonable, good faith judgment of
the Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law (a "potentially responsible party"), unless such action is
consistent with Section 6.11 and/or Section 6.12, in each case if and as
applicable, and the Special Servicer has previously determined (as evidenced by
an Officer's Certificate to such effect delivered to the Trustee (and, in the
case of a Mortgaged Property that secures a Serviced Loan Combination, to the
related Serviced Non-Trust Mortgage Loan Noteholder(s)) that shall specify all
of the bases for such determination), in accordance with the Servicing Standard
and based on an Environmental Assessment of such Mortgaged Property performed by
an Independent Person, who regularly conducts Environmental Assessments, within
six months prior to any such acquisition of title or other action (a copy of
which Environmental Assessment shall be delivered to the Trustee, the Master
Servicer and, in the case of a Mortgaged Property that secures a Serviced Loan
Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related Environmental Insurance
Policy) maximize the recovery on the related Serviced Mortgage Loan to the
Certificateholders (or, if a Serviced Loan Combination is involved, to the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders (or, if a Serviced Loan Combination is involved, to
the Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, to be performed at the related
Mortgage Rate(s)) to acquire title to or
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possession of the Mortgaged Property and to take such actions as are
necessary to bring the Mortgaged Property into compliance therewith in all
material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any applicable
environmental laws and regulations or, if such circumstances or conditions
are present for which any such action could reasonably be expected to be
required, that it would (taking into account the coverage provided under
any related Environmental Insurance Policy) maximize the recovery on the
related Serviced Mortgage Loan to the Certificateholders (or, if a Serviced
Loan Combination is involved, to the Certificateholders and the related
Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, on
a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders (or, if a Serviced Loan
Combination is involved, to the Certificateholders and the related Serviced
Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, to be
performed at the related Mortgage Rate(s)) to acquire title to or
possession of the Mortgaged Property and to take such actions with respect
to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the related Custodial Account pursuant to Section 3.05(a) or
Section 3.05A, as applicable (or, in the case of a Mortgaged Property that
secures a Serviced Loan Combination, to the extent the funds in the applicable
Loan Combination Custodial Account are insufficient, shall be advanced by the
Master Servicer, subject to Section 3.11(h).
(d) If the environmental testing contemplated by Section 3.09(c) above
establishes that any of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a defaulted Serviced Mortgage Loan, the Special Servicer shall
take such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust (and, if a
Serviced Loan Combination is involved, the related Serviced Non-Trust Mortgage
Loan Noteholder(s)), subject to Section 6.11 and/or Section 6.12, in each case
if and as applicable, release all or a portion of such Mortgaged Property from
the lien of the related Mortgage.
(e) The Special Servicer shall report to the Master Servicer, the
Underwriters, the Trustee and, if a Serviced Loan Combination is involved, the
related Serviced Non-Trust Mortgage Loan Noteholder(s), monthly in writing as to
any actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a Specially Serviced Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set
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forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of all such
conditions and release of the lien of the related Mortgage on such Mortgaged
Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, with respect to any Specially Serviced
Mortgage Loan, the advisability of seeking to obtain a deficiency judgment if
the state in which the related Mortgaged Property is located and the terms of
the affected Serviced Mortgage Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(g) The Master Servicer shall, with the reasonable cooperation of the
Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Serviced Mortgage Loan
required by Section 6050H of the Code and the reports of foreclosures and
abandonments of any Mortgaged Property (other than any Mortgaged Property that
secures an Outside Serviced Trust Mortgage Loan) and the information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property required by Sections 6050J and 6050P of the Code. Such reports shall be
in form and substance sufficient to meet the reporting requirements imposed by
Sections 6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Specially Serviced Mortgage Loan or
Administered REO Property, it shall promptly notify the Trustee, the Master
Servicer and, if a Serviced Loan Combination is involved, the related Serviced
Non-Trust Mortgage Loan Noteholder(s). The Special Servicer shall maintain
accurate records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and, if a Serviced Loan Combination is
involved, the related Serviced Non-Trust Mortgage Loan Noteholder(s), no later
than the seventh Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Serviced Mortgage Loan, or the
receipt by the Master Servicer or the Special Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or the Special Servicer shall promptly notify the Trustee and
any related Custodian (and, in the case of a Serviced Non-Trust Mortgage Loan,
the related Serviced Non-Trust Mortgage Loan Noteholder) by a certification
(which certification shall be in the form of a Request for Release in the form
of Exhibit D-1 attached hereto and shall be accompanied by the form of a release
or discharge and shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the applicable Custodial Account pursuant to Section 3.04(a) or
Section 3.04A(a), as applicable, have been or will be so deposited) of a
Servicing Officer (a copy of which certification shall be delivered to the
Special Servicer) and shall request delivery to it of the related Mortgage File
and, in the case of a Serviced Non-Trust Mortgage Loan, the original of the
Mortgage Note for such Serviced Non-Trust Mortgage Loan. Upon receipt of such
certification and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File (and, in the case of a Serviced
Non-Trust Mortgage Loan, the Trustee shall cause the related Serviced Non-Trust
Mortgage Loan Noteholder to release the
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Mortgage Note for such Serviced Non-Trust Mortgage Loan) to the Master Servicer
or Special Servicer and shall deliver to the Master Servicer or Special
Servicer, as applicable, such release or discharge, duly executed. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account or any Custodial
Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the Master Servicer or the Special
Servicer shall otherwise require any Mortgage File (or any portion thereof) (or
the original of the Mortgage Note for a Serviced Non-Trust Mortgage Loan), the
Trustee, upon request of the Master Servicer and receipt from the Master
Servicer of a Request for Release in the form of Exhibit D-1 attached hereto
signed by a Servicing Officer thereof, or upon request of the Special Servicer
and receipt from the Special Servicer of a Request for Release in the form of
Exhibit D-2 attached hereto, shall release, or cause any related Custodian to
release, such Mortgage File (or such portion thereof) (and, in the case of a
Serviced Non-Trust Mortgage Loan, the Trustee shall cause the related Serviced
Non-Trust Mortgage Loan Noteholder to release the original of the Mortgage Note
for such Non-Trust Mortgage Loan) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or such portion
thereof) to the Trustee or related Custodian (and, if applicable, such original
Mortgage Note for such Serviced Non-Trust Mortgage Loan to the related Serviced
Non-Trust Mortgage Loan Noteholder), or the delivery to the Trustee (and, if
applicable, to the related Serviced Non-Trust Mortgage Loan Noteholder) of a
certificate of a Servicing Officer of the Special Servicer stating that such
Serviced Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the related Custodial Account pursuant to Section 3.04(a) or Section
3.04A(a), as applicable, have been or will be so deposited, or that the related
Mortgaged Property has become an REO Property, the Request for Release shall be
released by the Trustee or related Custodian to the Master Servicer or the
Special Servicer, as applicable. If the Master Servicer or the Special Servicer
requires the original Mortgage Note or any other document that constitutes part
of a Mortgage File for any Trust Mortgage Loan, then (unless such document is to
be delivered to outside legal counsel) such documents shall be maintained in a
manner consistent with the Servicing Standard.
(c) Within seven (7) Business Days (or within such shorter period (but
no less than three (3) Business Days) as execution and delivery can reasonably
be accomplished if the Special Servicer notifies the Trustee and, in the case of
a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s) of an exigency) of the Special Servicer's request therefor, the
Trustee shall execute and deliver to the Special Servicer (or the Special
Servicer may execute and deliver in the name of the Trustee (on behalf of the
Certificateholders and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, with respect to any Serviced Mortgage Loan, any court pleadings,
requests for trustee's sale or other documents stated by the Special Servicer to
be reasonably necessary to the foreclosure or trustee's sale in respect of the
related Mortgaged Property or to any legal action brought to obtain judgment
against any Mortgagor on the related Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
related Mortgage Note or Mortgage or otherwise available at law or in equity or
to defend any legal action or counterclaim filed against the Trust Fund, the
Special Servicer or, if applicable, any Serviced Non-Trust Mortgage Loan
Noteholder. Together with such documents or pleadings, the Special Servicer
shall deliver to the Trustee (and, if applicable, any affected Serviced
Non-Trust Mortgage Loan Noteholder) a certificate of a Servicing Officer
requesting that such pleadings or documents be executed
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by the Trustee and certifying as to the reason such documents or pleadings are
required and that the execution and delivery thereof by the Trustee (on behalf
of the Certificateholders and, in the case of a Serviced Loan Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)) will
not invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity, or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(d) If from time to time, pursuant to the terms of the related
Co-Lender Agreement and the related Outside Servicing Agreement, and as
appropriate for enforcing the terms of any Outside Serviced Trust Mortgage Loan,
any related Outside Servicer or the appropriate Non-Trust Mortgage Loan
Noteholder requests delivery to it of the original Mortgage Note for such
Outside Serviced Trust Mortgage Loan, then the Trustee shall release or cause
the release of such original Mortgage Note to the requesting party or its
designee. In connection with the release of the original Mortgage Note for any
Outside Serviced Trust Mortgage Loan in accordance with the preceding sentence,
the Trustee shall obtain such documentation (such as a custodial receipt) as is
appropriate to evidence the holding by the related Outside Servicer or the
appropriate Non-Trust Mortgage Loan Noteholder as custodian on behalf of and for
the benefit of the Trustee.
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain
Matters Regarding Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each Trust
Mortgage Loan, each REO Trust Mortgage Loan, each Serviced Non-Trust Mortgage
Loan and any successor REO Mortgage Loan with respect to a Serviced Non-Trust
Mortgage Loan. As to each such Mortgage Loan and REO Mortgage Loan, the Master
Servicing Fee shall: (i) accrue from time to time at the related Master
Servicing Fee Rate on the same principal amount as interest accrues from time to
time on such Mortgage Loan or is deemed to accrue from time to time on such REO
Mortgage Loan; and (ii) be calculated on a 30/360 Basis (or, in the event that a
Principal Prepayment in full or other Liquidation Event shall occur with respect
to any such Mortgage Loan or REO Mortgage Loan on a date that is not a Due Date,
on the basis of the actual number of days to elapse from and including the most
recently preceding related Due Date to but excluding the date of such Principal
Prepayment or Liquidation Event in a month consisting of 30 days). The Master
Servicing Fee with respect to any such Mortgage Loan or REO Mortgage Loan shall
cease to accrue if a Liquidation Event occurs in respect thereof. Earned but
unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis,
from payments of interest on each such Mortgage Loan and REO Revenues allocable
as interest on each such REO Mortgage Loan. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any such Mortgage
Loan or REO Mortgage Loan out of that portion of related Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds allocable as recoveries of
interest, to the extent permitted by Section 3.05(a) or Section 3.05A, as
applicable, and in the case of a Trust Mortgage Loan or an REO Trust Mortgage
Loan, out of such other amounts as may be permitted by Section 3.05(a). In no
event shall any Master Servicing Fee earned with respect to any Serviced
Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto be payable out of any amounts allocable to any
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more senior Mortgage Loan or REO Mortgage Loan that is part of the related
Serviced Loan Combination. The right to receive the Master Servicing Fee may not
be transferred in whole or in part except in connection with the transfer of all
of the Master Servicer's responsibilities and obligations under this Agreement.
(b) Additional master servicing compensation, in the form of the items
set forth in clauses (i) through (iii) below in this paragraph, shall be
retained by the Master Servicer or promptly paid to the Master Servicer by the
Special Servicer and such additional master servicing compensation is not
required to be deposited in any Custodial Account: (i) Net Default Charges,
charges for beneficiary statements or demands, amounts collected for checks
returned for insufficient funds, and any similar fees (excluding Prepayment
Premiums and Yield Maintenance Charges), in each case to the extent actually
paid by a Mortgagor with respect to any Serviced Mortgage Loan (or, in the case
of Net Default Charges, any Serviced Trust Mortgage Loan) and accrued during the
time that such Serviced Mortgage Loan (or, in the case of Net Default Charges,
such Serviced Trust Mortgage Loan) was a Performing Serviced Mortgage Loan (or,
in the case of Net Default Charges, a Performing Serviced Trust Mortgage Loan),
and any Net Default Charges Received by the Trust with respect to an Outside
Serviced Trust Mortgage Loan; (ii) (x) with respect to Section 3.20(c), 100%
(or, if the Special Servicer is processing the subject action, 0%), and (y) with
respect to Section 3.08(c), 100% (or, if the consent of the Special Servicer is
required with respect to the subject action, 50%) of each modification fee,
extension fee or other similar fee actually paid by a Mortgagor with respect to
a modification, consent, extension, waiver, amendment or encumbrance of the
related Mortgaged Property agreed to by the Master Servicer pursuant to Section
3.20(c) or Section 3.08(c); (iii) 100% of any fee actually paid by a Mortgagor
in connection with a defeasance of a Serviced Mortgage Loan as contemplated
under Section 3.20; and (iv) with respect to any Performing Serviced Mortgage
Loan, 50% of any and all assumption fees, 100% of any and all assumption
application fees (or, in the event that (x) the Master Servicer enters into an
assumption or substitution agreement pursuant to Section 3.08(a) and the related
loan documents do not provide for an assumption fee in connection therewith, or
(y) the proposed transfer or assumption under Section 3.08(a) is approved and/or
processed but does not occur or (z) the proposed transfer or assumption under
Section 3.08(a) is not approved or is denied and does not occur and,
additionally, in the case of (x), (y) and (z), assumption application fees are
paid by the Mortgagor in connection therewith, then 50% of such assumption
application fees) and other applicable fees actually paid by a Mortgagor in
accordance with the related loan documents with respect to any assumption or
substitution agreement entered into by the Master Servicer on behalf of the
Trust (or, in the case of a Serviced Loan Combination, on behalf of the Trust
and the related Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section
3.08(a) or paid by a Mortgagor with respect to any transfer of an interest in a
Mortgagor pursuant to Section 3.08(a). The Master Servicer shall also be
entitled to additional master servicing compensation in the form of (i)
Prepayment Interest Excesses Received by the Trust with respect to the Trust
Mortgage Loans; (ii) interest or other income earned on deposits in the
Custodial Accounts in accordance with Section 3.06(b) (but only to the extent of
the Net Investment Earnings, if any, with respect to such account for each
related Investment Period); and (iii) to the extent not required to be paid to
any Mortgagor under applicable law, any interest or other income earned on
deposits in the Servicing Accounts, the Reserve Accounts and the Defeasance
Deposit Account maintained thereby (but only to the extent of the Net Investment
Earnings, if any, with respect to each such account for each related Investment
Period).
The parties hereto acknowledge that, with regard to each Outside
Serviced Trust Mortgage Loan, as and to the extent provided in the related
Outside Servicing Agreement and/or the
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related Co-Lender Agreement, as applicable, amounts in the nature of the
foregoing may be payable to one of the related Outside Servicers, and there can
be no assurance that any related Prepayment Interest Excesses and/or Default
Charges shall be Received by the Trust with respect to an Outside Serviced Trust
Mortgage Loan.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property. With respect to each Specially Serviced Mortgage Loan
and each REO Mortgage Loan that relates to an Administered REO Property, the
Special Servicing Fee shall: (i) accrue from time to time at the Special
Servicing Fee Rate on the same principal amount as interest accrues from time to
time on such Mortgage Loan or is deemed to accrue from time to time on such REO
Mortgage Loan; and (ii) be calculated on a 30/360 Basis (or, in the event that a
Principal Prepayment in full or other Liquidation Event shall occur with respect
to any Specially Serviced Mortgage Loan or REO Mortgage Loan on a date that is
not a Due Date, on the basis of the actual number of days to elapse from and
including the most recently preceding related Due Date to but excluding the date
of such Principal Prepayment or Liquidation Event, in a month consisting of 30
days and, in the case of any other partial period that does not run from one Due
Date through and including the day immediately preceding the next Due Date, on
the basis of the actual number of days in such period in a month consisting of
30 days). The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Mortgage Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage
Loan. Earned but unpaid Special Servicing Fees in respect of Specially Serviced
Trust Mortgage Loans and, to the extent they relate to Administered REO
Properties, REO Trust Mortgage Loans shall be payable monthly out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account, to
the extent permitted by Section 3.05(a). In addition, earned but unpaid Special
Servicing Fees in respect of a Serviced Loan Combination consisting of Specially
Serviced Mortgage Loans or REO Mortgage Loans shall be payable out of
collections on such Loan Combination on deposit in the applicable Loan
Combination Custodial Account, to the extent permitted pursuant to Section 3.05A
and the related Co-Lender Agreement, and, with respect to any Serviced
Combination Trust Mortgage Loan that constitutes a Specially Serviced Mortgage
Loan or REO Mortgage Loan, out of collections on deposit in the Pool Custodial
Account, to the extent permitted pursuant to Section 3.05.
As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each Corrected Mortgage Loan, subject to the
second following paragraph, the Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate to, all collections of
principal, interest (other than any Default Interest, Additional Interest and
Excess Defeasance Deposit Proceeds), Prepayment Premiums and/or Yield
Maintenance Charges received on the subject Serviced Mortgage Loan for so long
as it remains a Corrected Mortgage Loan; provided that no Workout Fee shall be
payable from, or based upon the receipt of, Liquidation Proceeds collected in
connection with a Permitted Purchase, or out of any Loss of Value Payments,
Insurance Proceeds or Condemnation Proceeds. The Workout Fee with respect to any
Corrected Mortgage Loan will cease to be payable if such Corrected Mortgage Loan
again becomes a Specially Serviced Mortgage Loan or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee will become
payable if and when the particular Serviced Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated or removed (other
than for cause) or resigns in accordance with the first sentence of the first
paragraph of Section 6.04, it shall retain the right to receive any and all
Workout Fees (and the successor
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Special Servicer (including the Trustee if it is the successor Special Servicer
as provided in the first paragraph of Section 7.02) shall not be entitled to any
portion of such Workout Fees) that are payable in respect of:
(i) each Mortgage Loan that became a Corrected Mortgage Loan
during the period that the terminated, removed or resigning Special
Servicer acted as Special Servicer and was still such at the time of such
termination, removal or resignation; and
(ii) each Mortgage Loan that would have been a "Corrected
Mortgage Loan" at the time of such termination, removal or resignation but
for the payment (in accordance with clause (w) of the definition of
"Specially Serviced Mortgage Loan") by the related Mortgagor of the three
consecutive full and timely Monthly Payments under the terms of such
Serviced Mortgage Loan (as such terms may have been changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment
granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20), but only if such three consecutive full and
timely Monthly Payments are in fact made within three months of such
termination, removal or resignation;
in each case until the Workout Fee for any such Serviced Mortgage Loan ceases to
be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
each Specially Serviced Mortgage Loan as to which it receives a full, partial or
discounted payoff and, subject to the provisos to the next sentence, each
Specially Serviced Mortgage Loan and Administered REO Property as to which it
receives Net Liquidation Proceeds. As to each such Specially Serviced Mortgage
Loan or Administered REO Property, subject to the following paragraph, the
Liquidation Fee shall be payable from, and shall be calculated by application of
the Liquidation Fee Rate to, such full, partial or discounted payoff and/or such
Net Liquidation Proceeds (exclusive of any portion of such payoff or proceeds
that represents Default Interest and/or Additional Interest); provided that no
Liquidation Fee shall be payable (i) with respect to any Specially Serviced
Mortgage Loan that becomes a Corrected Mortgage Loan or (ii) from, or based upon
the receipt of, Liquidation Proceeds collected in connection with the
acquisition of any Specially Serviced Mortgage Loan or REO Property by all the
Certificateholders (acting together) in exchange for all the Certificates
pursuant to Section 9.01 or the purchase of any Specially Serviced Trust
Mortgage Loan by a Purchase Option Holder pursuant to Section 3.18 (provided,
however, that a Liquidation Fee will be paid in connection with the purchase of
a Specially Serviced Trust Mortgage Loan at its FV Price as determined in
Section 3.18, if such purchase is by an assignee of either a Holder of a
Certificate of the Controlling Class or the Special Servicer, such assignee is
not an Affiliate of a Holder of a Certificate of the Controlling Class or the
Special Servicer, such assignment is for no material consideration, and such
purchase occurs or purchase right is exercised more than 90 days from the date
that the Special Servicer has initially determined the FV Price of the related
Mortgage Loan), by the Special Servicer, a Controlling Class Certificateholder,
the Master Servicer, the Depositor or Xxxxxx Brothers pursuant to Section 9.01,
by a Non-Trust Mortgage Loan Noteholder or its designee pursuant to the related
Co-Lender Agreement (unless such purchase occurs after the expiration of 60 days
from the date such Non-Trust Mortgage Loan Noteholder's right to purchase such
Specially Serviced Trust Mortgage Loan arose under such Co-Lender Agreement and
such Liquidation Fee is
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actually paid), by the Depositor pursuant to Section 2.03 or by or on behalf of
an Unaffiliated Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement in connection with a Material Document Defect or a Material
Breach (in either such case, prior to the expiration of the Seller/Depositor
Resolution Period), by the Depositor pursuant to Section 2.03 or by or on behalf
of an Unaffiliated Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement in connection with the defeasance of an Early Defeasance
Trust Mortgage Loan prior to the second anniversary of the Closing Date, or by
the holder of a related mezzanine loan pursuant to a purchase right in
connection with a Mortgage Loan default as set forth in the related
intercreditor agreement (unless a Liquidation Fee is specifically required to be
paid in connection with such purchase and is actually paid pursuant to the
subject intercreditor agreement; provided that, if the subject intercreditor
agreement provides that a Liquidation Fee is payable if and to the extent such
fee is payable under this Agreement (or words of similar import), then such
Liquidation Fee shall be payable hereunder if such purchase occurs after the
expiration of 60 days from the date the right to purchase arises under such
mezzanine intercreditor agreement and if such fee is actually paid; and
provided, further, that, if the Master Servicer or Special Servicer, as
applicable, consents subsequent to the Closing Date to the incurrence by the
principal(s) of a Mortgagor under a Trust Mortgage Loan of mezzanine financing
in accordance with the related loan documents and enters into an intercreditor
agreement, such servicer (to the extent it is permitted to do so under the
related loan documents and applicable law and in accordance with the Servicing
Standard) shall require the related mezzanine lender to pay a Liquidation Fee in
connection with any purchase right that arises upon a Mortgage Loan default in
the event such purchase occurs after the expiration of 60 days from the date the
right to purchase arises under such mezzanine intercreditor agreement) or (iii)
from, or based upon the receipt or application of, Loss of Value Payments; and
provided, further, that, in connection with any purchase by the Depositor
pursuant to Section 2.03 or by or on behalf of an Unaffiliated Mortgage Loan
Seller pursuant to the applicable Mortgage Loan Purchase Agreement in connection
with a Material Document Defect or a Material Breach (in either case, subsequent
to the expiration of the Seller/Depositor Resolution Period), the Liquidation
Fee shall equal 1% of the Stated Principal Balance of the repurchased Trust
Mortgage Loan (or, if an REO Property is being repurchased, 1% of the Stated
Principal Balance of the related REO Trust Mortgage Loan).
Notwithstanding the foregoing, any Workout Fee and/or Liquidation Fee
payable in accordance with the two preceding paragraphs with respect to Mortgage
Loans or REO Mortgage Loans that comprise a Serviced Loan Combination shall be
paid from collections received on such Loan Combination on deposit in the
applicable Loan Combination Custodial Account, to the extent permitted pursuant
to Section 3.05A and the related Co-Lender Agreement; provided that in no event
shall any Special Servicing Fee, Workout Fee or Liquidation Fee earned with
respect to any Serviced Subordinate Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto be payable out of any amounts allocable to
any more senior Mortgage Loan or REO Mortgage Loan that is part of the related
Serviced Loan Combination.
Notwithstanding anything to the contrary herein, a Liquidation Fee and
a Workout Fee relating to the same Mortgage Loan shall not be paid from the same
proceeds with respect to such Mortgage Loan.
Notwithstanding anything to the contrary herein, the Special Servicer
shall not be entitled to any Special Servicing Fees, Workout Fees or Liquidation
Fees with respect to any Mortgage Loan or
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REO Mortgage Loan or comparable deemed mortgage loan comprising an Outside
Serviced Loan Combination.
The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and the Liquidation Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) Additional special servicing compensation in the form of the items
set forth below in clauses (i) through (v) below shall be retained by the
Special Servicer or promptly paid to the Special Servicer by the Master
Servicer, as the case may be, and shall not be required to be deposited in any
Custodial Account pursuant to Section 3.04(a) or Section 3.04A(a): (i) Net
Default Charges actually collected with respect to any Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto that accrued
while the subject loan was a Specially Serviced Trust Mortgage Loan or an REO
Trust Mortgage Loan; (ii) with respect to any Specially Serviced Mortgage Loan,
100% of any and all assumption fees, assumption application fees and other
applicable fees, actually paid by a Mortgagor in accordance with the related
loan documents, with respect to any assumption or substitution agreement entered
into by the Special Servicer on behalf of the Trust (or, in the case of a
Serviced Loan Combination, on behalf of the Trust and the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section 3.08(b) or paid by a
Mortgagor with respect to any transfer of an interest in a Mortgagor pursuant to
Section 3.08(b); (iii) with respect to any Performing Serviced Mortgage Loan,
50% of any and all assumption fees actually paid by a Mortgagor in accordance
with the related loan documents, with respect to any assumption or substitution
agreement entered into by the Master Servicer on behalf of the Trust (or, in the
case of a Serviced Loan Combination, on behalf of the Trust and the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section 3.08(a) or
paid by a Mortgagor with respect to any transfer of an interest in a Mortgagor
pursuant to Section 3.08(a); (iv) with respect to any Performing Serviced
Mortgage Loan, in the event that (x) the Master Servicer enters into an
assumption or substitution agreement pursuant to Section 3.08(a) and the related
loan documents do not provide for an assumption fee in connection therewith, (y)
the proposed transfer or assumption is approved and/or processed but does not
occur or (z) the proposed transfer or assumption under Section 3.08(a) is not
approved or is denied and does not occur and, additionally, in the case of (x),
(y) and (z), assumption application fees are paid by the Mortgagor in connection
therewith, then 50% of such assumption application fees; (v) with respect to any
Performing Serviced Mortgage Loan (x) with respect to Section 3.20(c), 100% (if
the Special Servicer is processing the subject action), and (y) with respect to
Section 3.08(c), 50% (if the consent of the Special Servicer is required with
respect to the subject action), of each modification fee, extension fee or other
similar fee actually paid by a Mortgagor with respect to a modification,
consent, extension, waiver, amendment or encumbrance of the related Mortgaged
Property agreed to by the Master Servicer pursuant to Section 3.20(c) or Section
3.08(c); and (vi) any and all other modification fees, consent fees, extension
fees and similar fees actually collected on the Serviced Mortgage Loans that are
not otherwise payable to the Master Servicer as additional master servicing
compensation pursuant to Section 3.11(b). The Special Servicer shall also be
entitled to additional special servicing compensation in the form of interest or
other income earned on deposits in any REO Account, if established, in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such account for each related Investment
Period) and a $1,500 fee for calculating the FV Price of any Outside Serviced
Trust Mortgage Loan.
(e) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including
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payment of any amounts due and owing to any of its Sub-Servicers and the
premiums for any blanket policy or the standby fee or similar premium for any
master force placed policy obtained by it insuring against hazard losses
pursuant to Section 3.07(b)), if and to the extent such expenses are not payable
directly out of any of the Custodial Accounts or, in the case of the Special
Servicer, any of the REO Accounts, and neither the Master Servicer nor the
Special Servicer shall be entitled to reimbursement for such expenses except as
expressly provided in this Agreement.
(f) If the Master Servicer or Special Servicer is required under any
provision of this Agreement to make a Servicing Advance, but it does not do so
within 15 days after such Advance is required to be made, the Trustee shall, if
it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give written notice of such failure to, as
applicable, the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer, as
applicable, within three (3) Business Days after such notice is given to the
Master Servicer or the Special Servicer, as the case may be, then (subject to
Section 3.11(h)) the Trustee shall make such Servicing Advance. If the Trustee
fails to make any Servicing Advance required to be made under this Agreement,
then (subject to Section 3.11(h)) the Fiscal Agent, if any, shall make such
Servicing Advance within one (1) Business Day of such failure by the Trustee
and, if so made, the Trustee shall be deemed not to be in default under this
Agreement.
(g) The Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded annually, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) first, in
accordance with Sections 3.05(a) and 3.26, out of any Default Charges on deposit
in the Pool Custodial Account that were collected on or in respect of the
particular Trust Mortgage Loan or REO Trust Mortgage Loan as to which such
Servicing Advance relates (provided that such Default Charges will only be
applied to pay interest accrued on such Servicing Advance through the date that
such Default Charges were received); and (ii) then, if and to the extent that
such Default Charges are insufficient to cover such interest, but not before the
related Advance has been reimbursed pursuant to this Agreement, out of general
collections on the Trust Mortgage Loans and REO Trust Mortgage Loans on deposit
in the Pool Custodial Account; provided that, if such Servicing Advance was made
with respect to a Serviced Loan Combination or any related Mortgaged Property,
then such interest shall first be payable out of amounts on deposit in the
related Loan Combination Custodial Account in accordance with Section 3.05A and
the related Co-Lender Agreement. The Master Servicer shall reimburse itself, the
Special Servicer, the Trustee or any Fiscal Agent, as appropriate, in accordance
with Section 3.03, Section 3.05(a) or Section 3.05A, as applicable, for any
Servicing Advance as soon as practicable after funds available for such purpose
are deposited in the applicable Custodial Account. Notwithstanding the
foregoing, upon a determination that a previously made Servicing Advance is a
Nonrecoverable Servicing Advance, instead of obtaining reimbursement out of
general collections on the Mortgage Pool immediately, any of the Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as applicable,
may, in its sole discretion, elect to obtain reimbursement for such
Nonrecoverable Servicing Advance over a period of time (not to exceed 12 months
or such longer period of time as is approved in writing by the Controlling Class
Representative) and the unreimbursed portion of such Servicing Advance will
accrue interest at the Reimbursement Rate in effect from time to time. At any
time after such a determination to obtain reimbursement over time in accordance
with the preceding sentence, the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as applicable, may, in its sole discretion, decide
to obtain reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Servicing
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Advance over time, or not to do so, benefits some Classes of Certificateholders
to the detriment of other Classes shall not constitute a violation of the
Servicing Standard by the Master Servicer, or a breach of any fiduciary duty
owed to the Certificateholders by the Trustee or a Fiscal Agent, or a breach of
any other contractual obligation owed to the Certificateholders by any party to
this Agreement.
(h) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent shall be
required to make out of its own funds any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. The determination by the Master
Servicer or the Special Servicer that it has made (or, in the case of the
Special Servicer, that the Master Servicer, the Trustee or a Fiscal Agent has
made) a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officer's
Certificate delivered promptly to the Trustee and the Depositor (and, in the
case of a Servicing Advance with respect to a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s)), setting forth the basis for such
determination, together with a copy of any appraisal of the related Mortgaged
Property or REO Property, as the case may be (which appraisal shall be an
expense of the Trust, shall take into account the factors specified in Section
3.18 and shall have been conducted by an Independent Appraiser in accordance
with the standards of the Appraisal Institute within the 12 months preceding
such determination of nonrecoverability), and further accompanied by related
Mortgagor operating statements and financial statements, budgets and rent rolls
of the related Mortgaged Property (to the extent available and/or in the Master
Servicer's or the Special Servicer's possession) and any engineers' reports,
environmental surveys or similar reports that the Master Servicer or the Special
Servicer may have obtained and that support such determination. If the Master
Servicer intends to obtain an appraisal in connection with the foregoing, the
Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal. In determining whether any Servicing
Advance constitutes a Nonrecoverable Servicing Advance, the Master Servicer and
the Special Servicer shall each be entitled to consider (among other things) the
obligations of the related Mortgagor under the terms of the related Mortgage
Loan (as such terms may have been modified), to consider (among other things)
the related Mortgaged Property in its "as is" or then current condition and with
its then current occupancies, all as modified by such party's reasonable
assumptions (consistent with the Servicing Standard) regarding the possibility
and effects of future adverse change with respect to the related Mortgaged
Property, to estimate and consider (among other things) future expenses and to
estimate and consider (among other things) the timing of recoveries. In
addition, the Master Servicer or the Special Servicer may update or change its
recoverability determination at any time with respect to any Servicing Advance,
and the Master Servicer may obtain from the Special Servicer any analysis,
appraisals or market value estimates or other information in the possession of
the Special Servicer for purposes of determining whether a Servicing Advance is
a Nonrecoverable Servicing Advance. The Trustee and any Fiscal Agent shall be
entitled to rely, conclusively, on any determination by the Master Servicer (and
the Trustee, any Fiscal Agent and the Master Servicer shall rely on any
determination by the Special Servicer) that a Servicing Advance, if made, would
be a Nonrecoverable Servicing Advance; provided, however, that if the Master
Servicer or the Special Servicer has failed to make a Servicing Advance for
reasons other than a determination by the Master Servicer or the Special
Servicer, as applicable, that such Servicing Advance would be a Nonrecoverable
Advance, the Trustee or any Fiscal Agent, as applicable, shall make such
Servicing Advance within the time periods required by Section 3.11(f) unless the
Trustee or such Fiscal Agent, in good faith, makes a determination that such
Servicing Advance would be a Nonrecoverable Advance.
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(i) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an Administered REO Property is involved) pay directly
out of the Pool Custodial Account and/or (if a Serviced Loan Combination is
involved) the related Loan Combination Custodial Account, in accordance with
Section 3.05(a) or Section 3.05A, as applicable, any servicing expense that, if
advanced by the Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance; provided that the Master Servicer (or the
Special Servicer, if a Specially Serviced Mortgage Loan or an Administered REO
Property is involved) has determined in accordance with the Servicing Standard
that making such payment, in the case of withdrawals from a Loan Combination
Custodial Account, is in the best interests of the Certificateholders and the
related Serviced Non-Trust Mortgage Loan Noteholder (as a collective whole), or,
in the case of withdrawals from the Pool Custodial Account, is in the best
interests of the Certificateholders (as a collective whole), as evidenced in
each case by an Officer's Certificate delivered promptly to the Trustee, the
Depositor, the Controlling Class Representative and any affected Serviced
Non-Trust Mortgage Loan Noteholder(s), setting forth the basis for such
determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
promptly delivered to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer. The Master Servicer may conclusively
rely on any information in this regard provided by the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of the Mortgaged Property securing a Serviced Mortgage Loan
as soon as practicable after such Serviced Mortgage Loan becomes a Specially
Serviced Mortgage Loan and annually thereafter for so long as such Mortgage Loan
remains a Specially Serviced Mortgage Loan, the cost of which shall be paid by
the Master Servicer, at the direction of the Special Servicer, and shall be
reimbursable as a Servicing Advance. In addition, the Special Servicer shall
perform or cause to be performed a physical inspection of each of the
Administered REO Properties at least once per calendar year, the cost of which
shall be paid by the Master Servicer, at the direction of the Special Servicer,
and shall be reimbursable as a Servicing Advance. Beginning in 2008, the Master
Servicer shall at its expense perform or cause to be performed a physical
inspection of each Mortgaged Property securing a Performing Serviced Mortgage
Loan: (i) at least once every two calendar years in the case of Mortgaged
Properties securing Performing Serviced Mortgage Loans that have outstanding
principal balances of (or Mortgaged Properties having allocated loan amounts of)
$2,000,000 or less; and (ii) at least once every calendar year in the case of
all other such Mortgaged Properties; provided that, the Master Servicer will not
be required to perform or cause to be performed an inspection on a Mortgaged
Property if such Mortgaged Property has been inspected by the Master Servicer or
the Special Servicer in the preceding six (6) months. The Master Servicer and
the Special Servicer shall each promptly prepare or cause to be prepared and
deliver to the Trustee, the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (if the subject Mortgaged Property secures a Serviced Loan
Combination) and each other a written report of each such inspection performed
by it that sets forth in detail the condition of the Mortgaged Property and that
specifies the existence of: (i) any sale, transfer or abandonment of the
Mortgaged Property of which the Master Servicer or the Special Servicer, as
applicable, is aware, (ii) any change in the condition or value of the Mortgaged
Property that the Master Servicer or the Special Servicer, as
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applicable, in its reasonable, good faith judgment, considers material, or (iii)
any waste committed on the Mortgaged Property. The Master Servicer and Special
Servicer shall each forward copies of any such inspection reports prepared by it
to the Underwriters, the Controlling Class Representative and the Serviced
Non-Trust Noteholders, upon request, subject to payment of a reasonable fee.
The Special Servicer, in the case of each Specially Serviced Mortgage
Loan and each REO Mortgage Loan that relates to an Administered REO Property,
and the Master Servicer, in the case of each Performing Serviced Mortgage Loan,
shall each, consistent with the Servicing Standard, use reasonable efforts to
obtain quarterly, annual and other periodic operating statements and rent rolls
with respect to each of the related Mortgaged Properties and REO Properties. The
Special Servicer shall, promptly following receipt, deliver copies of the
operating statements and rent rolls received or obtained by it to the Master
Servicer. The Master Servicer shall promptly deliver copies of the operating
statements and rent rolls received or obtained by it (including pursuant to the
preceding sentence) to the Trustee, the Special Servicer, any related Serviced
Non-Trust Mortgage Loan Noteholder(s) (if the subject Mortgaged Property secures
a Serviced Loan Combination) or any Controlling Class Certificateholder, in each
case upon request.
Within 30 days after receipt by the Master Servicer or Special
Servicer, as applicable, of any annual operating statements with respect to any
Mortgaged Property (other than a Mortgaged Property that secures an Outside
Serviced Loan Combination) or Administered REO Property, the Master Servicer
(with respect to a Mortgaged Property that secures a Performing Serviced
Mortgage Loan) and the Special Servicer (with respect to a Mortgaged Property
that secures a Specially Serviced Mortgage Loan or with respect to an
Administered REO Property) shall prepare or update and forward to the Trustee a
CMSA NOI Adjustment Worksheet for such Mortgaged Property or Administered REO
Property (with, upon request, the annual operating statements attached thereto
as an exhibit).
The Master Servicer, with respect to a Mortgaged Property that secures
a Performing Serviced Mortgage Loan, and the Special Servicer, with respect to a
Mortgaged Property that secures a Specially Serviced Mortgage Loan or with
respect to an Administered REO Property, shall prepare and maintain one CMSA
Operating Statement Analysis Report for each such Mortgaged Property and
Administered REO Property. The CMSA Operating Statement Analysis Report for each
such Mortgaged Property and REO Property is to be updated by the Master Servicer
or Special Servicer, as applicable, within 30 days after its receipt of updated
operating statements for a Mortgaged Property or REO Property, as the case may
be. The Master Servicer or Special Servicer, as applicable, shall use the
"Normalized" column from the CMSA NOI Adjustment Worksheet for any Mortgaged
Property or REO Property, as the case may be, to update and normalize the
corresponding annual year-end information in the CMSA Operating Statement
Analysis Report and shall use any annual operating statements and related data
fields received with respect to any Mortgaged Property or REO Property, as the
case may be, to prepare the CMSA NOI Adjustment Worksheet for such property.
Copies of CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
Worksheets (as well as any comparable items received with respect to an Outside
Serviced Trust Mortgage Loan or any related REO Property) are to be forwarded by
the Master Servicer or the Special Servicer, as applicable, to each other, the
Trustee and any Controlling Class Certificateholder, in each case upon request.
(b) Not later than 12:00 p.m. (New York City time) on the Business Day
after each Trust Determination Date, the Special Servicer shall deliver or cause
to be delivered to the Master Servicer the following reports with respect to the
Specially Serviced Trust Mortgage Loans and any
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Administered REO Properties and, to the extent that the subject information
relates to when they were Specially Serviced Trust Mortgage Loans, with respect
to any Corrected Trust Mortgage Loans, providing the required information as of
the related Determination Date: (A) a CMSA Special Servicer Loan File, (B) a
CMSA Servicer Appraisal Reduction Template, and (C) a CMSA Servicer Realized
Loss Template.
(c) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee and, upon request, to the Depositor, the Underwriters and the
Special Servicer, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Trust Mortgage Loans and any REO Trust Mortgage
Loans as of the related Determination Date (or, in the case of an Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, as of the end of the related Underlying Collection Period). In
the case of information to be furnished by the Master Servicer to the Trustee
pursuant to this Section 3.12(c), insofar as such information is solely within
the control of the Special Servicer, the Master Servicer (if other than the
Special Servicer or an Affiliate thereof) shall have no obligation to provide
such information until it has received such information from the Special
Servicer, shall not be in default hereunder due to a delay in providing the CMSA
Loan Periodic Update File caused by the Special Servicer's failure to timely
provide any report required under this Agreement and may, absent actual
knowledge of an error therein, conclusively rely on the reports to be provided
by the Special Servicer. The Master Servicer may conclusively rely on any
information provided by the respective Mortgage Loan Sellers or any Mortgagor
with respect to the CMSA Loan Periodic Update File, CMSA Loan Setup File, CMSA
Property File and CMSA Financial File.
Not later than 4:00 p.m. (New York City time) on the first Business
Day prior to each Distribution Date, the Master Servicer shall deliver or cause
to be delivered to the Trustee, the Rating Agencies, the Special Servicer and,
upon request, any Controlling Class Certificateholder: (i) the most recent CMSA
Special Servicer Loan File, CMSA Appraisal Reduction Template and CMSA Servicer
Realized Loss Template received from the Special Servicer pursuant to Section
3.12(b); (ii) a CMSA Property File, CMSA Financial File, CMSA Loan Setup File
(if modified), CMSA Loan Level Reserve/LOC Report, CMSA Delinquent Loan Status
Report, CMSA Historical Loan Modification and Corrected Mortgage Loan Report,
CMSA REO Status Report, CMSA Comparative Financial Status Report, Loan Payoff
Notification Report, CMSA Servicer Watch List and CMSA Total Loan Report (in
each case, if applicable, combining the reports prepared by the Special Servicer
and the Master Servicer) with information that is current as of the related
Determination Date with respect to each subject Trust Mortgage Loan and/or REO
Property; and (iii) a CMSA Advance Recovery Report providing the required
information for the Trust Mortgage Loans and any REO Trust Mortgage Loans as of
the related Determination Date (or, in the case of an Outside Serviced Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, as
of the end of the related Underlying Collection Period).
The Master Servicer shall incorporate in the foregoing reports
referred to above in this Section 3.12(c) any information and reports received
(by the date in the month of such Distribution Date that such information and
reports are scheduled to be received in accordance with the related Outside
Servicing Agreement) from the applicable Outside Servicer with respect to each
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto. The Master Servicer shall include on one of such reports
updated information as of the applicable Determination Date
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regarding the amount of accrued and unpaid interest on Advances in accordance
with Section 3.11(g) and/or 4.03(d), such information to be presented on a
loan-by-loan basis.
(d) If the Master Servicer or the Special Servicer determines, in its
reasonable judgment, that information regarding the Trust Mortgage Loans and REO
Properties (in addition to the information otherwise required to be contained in
the CMSA Investor Reporting Package) should be disclosed to Certificateholders
and Certificate Owners, then the Master Servicer or, solely as to Specially
Serviced Mortgage Loans and Administered REO Properties, the Special Servicer,
shall so notify the Trustee, set forth such information in an additional report,
in a format reasonably acceptable to the Trustee and the Master Servicer and, if
applicable, the Special Servicer (the "Supplemental Report"), and deliver such
report to the Trustee upon preparation thereof or simultaneously with the
delivery of the Master Servicer's reports described in Section 3.12(c).
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
any Controlling Class Certificateholder, the reports set forth in Section
3.12(c) in an electronic format reasonably acceptable to the Master Servicer and
the Trustee. The Master Servicer may, absent manifest error, conclusively rely
on the reports to be provided by the Special Servicer pursuant to Section
3.12(b) and, with respect to an Outside Serviced Trust Mortgage Loan or an
Outside Administered REO Property, by a related Outside Servicer pursuant to the
related Outside Servicing Agreement. The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Master Servicer pursuant
to Section 3.12(c) to the extent that the underlying information is solely
within the control of the Master Servicer or the Special Servicer, and the
Trustee shall not be responsible to recompute, recalculate or verify the
information provided to it by the Master Servicer. In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(c), if and to the extent that such information is based on reports
to be provided by the Special Servicer pursuant to Section 3.12(b) or by an
Outside Servicer pursuant to an Outside Servicing Agreement, or if and to the
extent such reports are to be prepared and delivered by the Special Servicer
pursuant to Section 3.12(b) or by an Outside Servicer pursuant to an Outside
Servicing Agreement, then, so long as the Master Servicer and the party required
to provide the subject reports are not the same Person or Affiliates, the Master
Servicer shall have no obligation to provide such information or reports to the
Trustee until it has received such information or reports from the Special
Servicer or the relevant Outside Servicer, as applicable, and the Master
Servicer is entitled to conclusively rely on such information provided by the
Special Servicer or relevant Outside Servicer, as applicable. The Master
Servicer shall not be in default hereunder due to a delay in providing the
reports required by Section 3.12(c) caused by the Special Servicer's failure to
timely provide any report required under Section 3.12(b) of this Agreement, or
by an Outside Servicer's failure to provide any report required to be provided
to the holder of the related Outside Serviced Trust Mortgage Loan pursuant to
the related Outside Servicing Agreement or the related Co-Lender Agreement, as
applicable.
(f) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12, including
the calculations made therein, shall be done in accordance with CMSA standards
to the extent applicable thereto.
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SECTION 3.12A. Preparation and Delivery of Certain Statements and
Reports to the Serviced Non-Trust Mortgage Loan Noteholders.
(a) The Master Servicer shall promptly deliver to each Serviced
Non-Trust Mortgage Loan Noteholder: (i) copies of operating statements and rent
rolls; (ii) upon request, annual CMSA NOI Adjustment Worksheets (with annual
operating statements as exhibits); and (iii) annual CMSA Operating Statement
Analysis Reports, in each case prepared, received or obtained by it pursuant to
Section 3.12 with respect to the Mortgaged Property securing the related
Serviced Loan Combination.
(b) If the Mortgage Loans forming a Serviced Loan Combination
constitute Specially Serviced Mortgage Loans, or if a Mortgaged Property
securing a Serviced Loan Combination has become an REO Property, then each
calendar month, not later than 10:00 a.m. (New York City time) on the second
Business Day prior to the applicable Loan Combination Master Servicer Remittance
Date in such month, the Special Servicer shall deliver or cause to be delivered
to the Master Servicer such of the following reports as may be relevant with
respect to such Serviced Loan Combination and/or the related Mortgaged Property:
(i) a CMSA Appraisal Reduction Template, (ii) a CMSA Servicer Realized Loss
Template and (iii) a CMSA Special Servicer Loan File.
(c) Prior to 4:00 p.m. (or, in the case of a Serviced Non-Trust
Mortgage Loan that is part of a Non-Trust Mortgage Loan Securitization Trust,
2:00 p.m.) (New York City time) on each applicable Master Servicer Remittance
Date, the Master Servicer shall, with respect to each Serviced Loan Combination,
prepare all Loan Combination Servicing Reports as may be relevant and that are
not otherwise required to be prepared by the Special Servicer pursuant to
Section 3.12A(b). The Master Servicer shall also include on one of such reports
updated information as of the applicable Loan Combination Determination Date
regarding the amount of accrued and unpaid interest on Advances in accordance
with Section 3.11(g) and/or 4.03(d), such information to be presented on a
loan-by-loan basis.
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.12A(b). In the case of information or
reports to be furnished by the Master Servicer to a Serviced Non-Trust Mortgage
Loan Noteholder pursuant to Section 3.12A(f), to the extent that such
information is based on reports to be provided by the Special Servicer pursuant
to Section 3.12A(b) and/or that such reports are to be prepared and delivered by
the Special Servicer pursuant to Section 3.12A(b), so long as the Master
Servicer and the Special Servicer are not the same Person or Affiliates, the
Master Servicer shall have no obligation to provide such information or reports
until it has received such information or reports from the Special Servicer, and
the Master Servicer shall not be in default hereunder due to a delay in
providing the reports required by Section 3.12A(f) caused by the Special
Servicer's failure to timely provide any report required under Section 3.12A(b)
of this Agreement.
(e) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12A, including
the calculations made therein, shall be done in accordance with CMSA standards,
to the extent applicable thereto.
(f) Not later than 4:00 p.m. (or, in the case of a Serviced Non-Trust
Mortgage Loan that is part of a Non-Trust Mortgage Loan Securitization Trust,
2:00 p.m.) (New York City time) on
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each related Master Servicer Remittance Date, the Master Servicer shall forward
to the related Non-Trust Mortgage Loan Noteholder(s) all related Loan
Combination Servicing Reports prepared with respect to each Serviced Loan
Combination, pursuant to this Section 3.12A, during the calendar month in which
such Master Servicer Remittance Date occurs.
(g) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.12A(f) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special Servicer to deliver timely such underlying information.
Nothing herein shall obligate the Master Servicer or the Special Servicer to
violate any applicable law prohibiting disclosure of information with respect to
the related Mortgagor, and the failure of the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereunder.
Absent manifest error of which it has actual knowledge, neither the
Master Servicer nor the Special Servicer shall be responsible for the accuracy
or completeness of any information supplied to it by a Mortgagor, a Mortgage
Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer or the
Special Servicer, as applicable, pursuant to this Agreement. Neither the Master
Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, a Mortgage
Loan Seller, a third party or each other.
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (i) physically delivering a paper copy of such
statement, report or information (ii) delivering such statement, report or
information in a commonly used electronic format or (iii) making such statement,
report or information available on such servicer's internet website and
delivering notice to the intended recipient of such availability and the
location of such website, unless this Agreement expressly specifies a particular
method of delivery.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Trustee, the Master Servicer and the Special Servicer
shall deliver (or, in the case of the Trustee, make available), and shall cause
(or, in the case of the Master Servicer with respect to a Sub-Servicer
identified on Exhibit K hereto, shall use reasonable efforts to cause) each
Additional Item 1123 Servicer retained or engaged by it to deliver, to the
Trustee, the Depositor and each Serviced Non-Trust Mortgage Loan Noteholder, at
no expense to the Trust, on or before April 30 of each year, beginning in 2008
(or, as to any such year, such earlier date as is contemplated by the last
sentence of this paragraph), a statement of compliance (the "Annual Statement of
Compliance") from the Trustee, the Master Servicer, the Special Servicer or such
Additional Item 1123 Servicer, as the case may be, signed by an authorized
officer thereof, to the effect that (i) a review of the activities of the
Trustee, the Master Servicer, the Special Servicer or such Additional Item 1123
Servicer, as the case may be, during the preceding calendar year (or, in the
case of the first such certification, during the period from the Closing Date to
December 31, 2007, inclusive) and, in particular, of its performance under this
Agreement (or, in the case of an Additional Item 1123 Servicer, under the
applicable Sub-Servicing Agreement or primary servicing agreement), has been
made under such officer's supervision, and (ii) to the best of such officer's
knowledge, based on such review, the Trustee, the Master Servicer, the Special
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Servicer or such Additional Item 1123 Servicer, as the case may be, has
fulfilled all of its obligations under this Agreement (or, in the case of an
Additional Item 1123 Servicer, under the applicable Sub-Servicing Agreement or
primary servicing agreement) in all material respects throughout such preceding
calendar year or portion thereof (or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such failure known to
such officer and the nature and status thereof). Notwithstanding the timing
provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor or any other party hereto is required to
file an Annual Report on Form 10-K with the Commission in respect of the Trust
covering any particular calendar year, or (if applicable) any other depositor,
trustee and/or other certifying party and certifying officer with respect to a
related securitization trust is required to file an Annual Report on Form 10-K
with the Commission in connection with the securitization of any Serviced
Non-Trust Mortgage Loan covering any particular calendar year and so notifies
the Trustee, the Master Servicer and the Special Servicer, then the Annual
Statement of Compliance to be delivered during the following year by each of the
Trustee, the Master Servicer and the Special Servicer, and by each Additional
Item 1123 Servicer with which the Master Servicer or Special Servicer has
entered into a servicing relationship with respect to any one or more Mortgage
Loans, shall be delivered (in Microsoft Word, Microsoft Excel or in such other
mutually agreeable format) on or before March 15 of such following year to the
Trustee, the Depositor, each Serviced Non-Trust Mortgage Loan Noteholder and any
such depositor, trustee and/or other certifying party and certifying officer
with respect to a related securitization trust, as applicable; and the Master
Servicer and the Special Servicer are hereby notified that the Depositor is
required to file an Annual Report on Form 10-K with the Commission in respect of
the Trust covering calendar year 2007.
In the event that the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and shall cause (or, in the case of the Master Servicer
with respect to a Sub-Servicer identified on Exhibit K hereto, shall use
reasonable efforts to cause) any Additional Item 1123 Servicer retained or
engaged by such party to provide, an annual statement of compliance pursuant to
this Section 3.13 with respect to the period of time that the Master Servicer,
the Special Servicer or the Trustee was subject to this Agreement. In addition,
in the event that any Additional Item 1123 Servicer retained or engaged by the
Master Servicer, the Special Servicer or the Trustee is terminated or resigns
pursuant to the terms of any applicable servicing agreement, such party shall
cause (or, in the case of the Master Servicer with respect to a Sub-Servicer
identified on Exhibit K hereto, shall use reasonable efforts to cause) the
subject Additional Item 1123 Servicer retained or engaged by such party to
provide an annual statement of compliance pursuant to this Section 3.13 with
respect to the period of time that the Additional Item 1123 Servicer was subject
to such other servicing agreement.
In the event the Trustee or the Depositor does not receive the Annual
Statement of Compliance with respect to any party hereto or, if the Trustee has
been notified of the existence thereof, any Additional Item 1123 Servicer
contemplated to deliver such report pursuant to the preceding paragraph, by
March 15th of any year during which an Annual Report on Form 10-K is required to
be filed with the Commission with respect to the Trust, then the Trustee shall,
and the Depositor may, forward a Servicer Notice to such Person (or, in the case
of an Additional Item 1123 Servicer known to the Trustee or the Depositor, as
the case may be, to the party hereto that retained or engaged such Additional
Item 1123 Servicer), with a copy of such Servicer Notice to the Depositor (if
the Trustee is sending the Servicer Notice) or the Trustee (if the Depositor is
sending the Servicer Notice), as applicable, within two (2) Business Days of
such failure. Any party hereto that retains or engages, during an Exchange Act
Reporting Year, a Servicing Representative (other than a Sub-Servicer
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identified on Exhibit K hereto) that is, with respect to such Exchange Act
Reporting Year, an Additional Item 1123 Servicer shall so notify the Trustee
(unless such party is the Trustee) and the Depositor in writing promptly
following such party's becoming aware that such Servicing Representative is or
has become an Additional Item 1123 Servicer; and, further, if such Servicing
Representative does not deliver an Annual Statement of Compliance with respect
to itself by March 15th of any year during which a Form 10-K is required to be
filed with the Commission with respect to the Trust, the party hereto that
retained or engaged such Servicing Representative shall so notify the Trustee
(unless such party is the Trustee) and the Depositor in writing no later than
the second Business Day following such March 15th.
If any party hereunder is also acting as an Outside Servicer with
respect to an Outside Serviced Trust Mortgage Loan or Outside Administered REO
Property during any portion of an Exchange Act Reporting Year in respect of the
Trust, then such party shall, in its capacity as such Outside Servicer, comply
with the provisions of this Section 3.13 applicable to the Master Servicer (if
the subject party is also acting as an Outside Master Servicer) or the Special
Servicer (if the subject party is also acting as an Outside Special Servicer),
as applicable, but reflecting that such Outside Serviced Trust Mortgage Loan or
such Outside Administered REO Property is being serviced and administered under
the related Outside Servicing Agreement.
SECTION 3.14. Reports on Assessment of Compliance with Servicing
Criteria; Registered Public Accounting Firm Attestation Reports.
Each Servicing Function Participant shall itself deliver (or, in the
case of the Trustee, make available), and each party hereto shall cause (or, in
the case of the Master Servicer with respect to a Sub-Servicer identified on
Exhibit K hereto, shall use reasonable efforts to cause) any Sub-Servicing
Function Participant retained or engaged by it to deliver, on or before April 30
of each year, beginning in 2008 (or, as to any such year, such earlier date as
is contemplated by the last sentence of this paragraph), to the Trustee, to the
Depositor, to each Serviced Non-Trust Mortgage Loan Noteholder and, in the case
of a Servicing Function Participant (other than the Master Servicer and the
Trustee) or a Sub-Servicing Function Participant, to the Master Servicer, at no
expense to the Trust, the following reports: (i) as required under Rules 13a-18
or 15d-18 of the Exchange Act and Item 1122 of Regulation AB, a report on an
assessment of compliance by it with the Servicing Criteria (an "Annual
Assessment Report"), signed by an authorized officer of such Servicing Function
Participant or such Sub-Servicing Function Participant, as the case may be,
which report shall contain (A) a statement by such Servicing Function
Participant or such Sub-Servicing Function Participant, as the case may be, of
its responsibility for assessing compliance with the Servicing Criteria
applicable to it, (B) a statement that such Servicing Function Participant or
such Sub-Servicing Function Participant, as the case may be, used the Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
Servicing Function Participant's or such Sub-Servicing Function Participant's,
as the case may be, assessment of compliance with the Relevant Servicing
Criteria as of and for the period ending December 31st of the preceding calendar
year, which discussion must include any material instance of noncompliance with
the Relevant Servicing Criteria identified by such Servicing Function
Participant or such Sub-Servicing Function Participant, as the case may be, and
(D) a statement that a registered public accounting firm has issued an
attestation report on such Servicing Function Participant's or such
Sub-Servicing Function Participant's, as the case may be, assessment of
compliance with the Relevant Servicing Criteria as of and for such period ending
December 31st of the preceding calendar year (it being further agreed that, if
any such Servicing Function Participant's or such Sub-Servicing Function
Participant's, as the case may
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be, Annual Assessment Report or Annual Attestation Report (as defined below)
identifies any material instance of noncompliance with the Relevant Servicing
Criteria, such Servicing Function Participant or the party hereto that retained
such Sub-Servicing Function Participant, as the case may be, shall
contemporaneously deliver to the indicated recipients above a separate statement
identifying such material instance of noncompliance, and if any such Servicing
Function Participant's or such Sub-Servicing Function Participant's Annual
Assessment Report or Annual Attestation Report has not been timely delivered to
the Depositor and the Trustee for inclusion as an exhibit to the subject Annual
Report on Form 10-K to be filed with the Commission for the calendar year
covered by such reports, such Servicing Function Participant or the party hereto
that retained such Sub-Servicing Function Participant, as the case may be, shall
(no later than one (1) Business Day following the date on which such report was
to be delivered) provide to the intended recipients above notice of such
failure, together with an associated explanation as to why such report has not
been delivered (in the case of the Master Servicer with respect to a
Sub-Servicer identified on Exhibit K hereto, to the extent such explanation can
be obtained from such Sub-Servicer with reasonable efforts)); and (ii) as an
exhibit to each report delivered by a Servicing Function Participant or a
Sub-Servicing Function Participant pursuant to the immediately preceding clause
(i), as required under Rules 13a-18 or 15d-18 of the Exchange Act and Item 1122
of Regulation AB, an attestation report from a registered public accounting firm
(made in accordance with the standards for attestation engagements issued or
adopted by the PCAOB) (an "Annual Attestation Report") that attests to, and
reports on, the assessment of compliance with Servicing Criteria made by the
asserting party in such report delivered pursuant to the immediately preceding
clause (i), together with (if required to be filed with the Commission under
applicable law) the written consent of such registered public accounting firm
authorizing the filing of such Annual Attestation Report with the Commission as
part of any registration statement applicable to the registration of the
Registered Certificates and/or any Non-Trust Mortgage Loan Securities. Each
Annual Attestation Report must be available for general use and may not contain
restricted use language. Promptly after receipt of each such report delivered
pursuant to the second preceding sentence, the Depositor shall review such
report and, if applicable, shall be entitled to consult with the appropriate
party hereto as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by such party or any Sub-Servicing Function
Participant that such party has retained or engaged. Notwithstanding the timing
provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor is required to file an Annual Report on
Form 10-K with the Commission in respect of the Trust covering any particular
calendar year, or (if applicable) any other depositor, trustee and/or other
certifying party and certifying officer with respect to a related securitization
trust is required to file an Annual Report on Form 10-K with the Commission in
connection with the securitization of any Serviced Non-Trust Mortgage Loan
covering any particular calendar year and so notifies the Master Servicer and
the Special Servicer, then the Annual Assessment Report and the Annual
Attestation Report to be delivered during the following year by or on behalf of
each Servicing Function Participant, and by or on behalf of each Sub-Servicing
Function Participant retained or engaged by a party hereto, shall be delivered
to the Depositor, the Trustee, each Serviced Non-Trust Mortgage Loan Noteholder
and any such depositor, trustee and/or other certifying party and certifying
officer with respect to a related securitization trust, as applicable, on or
before March 15 of such following year and shall not contain any restrictions on
the filing thereof with the Commission; and the Master Servicer, the Special
Servicer, the Trustee and any Fiscal Agent are hereby notified that the
Depositor is required to file an Annual Report on Form 10-K (including the
foregoing Annual Assessment Reports and Annual Attestation Reports) with the
Commission in respect of the Trust covering calendar year 2007.
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In the event that the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and shall cause (or, in the case of the Master Servicer
with respect to a Sub-Servicer identified on Exhibit K hereto, shall use
reasonable efforts to cause) any Sub-Servicing Function Participant retained or
engaged by it to provide, an Annual Assessment Report pursuant to this Section
3.14, coupled with an Annual Attestation Report (and any required accountants'
consent), pursuant to this section with respect to the period of time that the
Master Servicer, the Special Servicer or the Trustee, as the case may be, was
subject to this Agreement. In addition, in the event that any Sub-Servicing
Function Participant retained or engaged by any party hereto is terminated or
resigns pursuant to the terms of an applicable servicing or other agreement,
such party hereto shall cause (or, in the case of the Master Servicer with
respect to a Sub-Servicer identified on Exhibit K hereto, shall use reasonable
efforts to cause) such Sub-Servicing Function Participant retained or engaged by
it to provide an Annual Assessment Report pursuant to this Section 3.14, coupled
with an Annual Attestation Report (and any required accountants' consent),
pursuant to this Section with respect to the period of time that such
Sub-Servicing Function Participant was subject to such other servicing or other
agreement.
In the event the Trustee or the Depositor does not receive the Annual
Assessment Report and/or the Annual Attestation Report with respect to any
Servicing Function Participant, or with respect to any Sub-Servicing Function
Participant retained or engaged by a party hereto that is known to the Trustee
or the Depositor, as the case may be, by March 15th of any year during which an
Annual Report on Form 10-K is required to be filed with the Commission with
respect to the Trust, then the Trustee shall, and the Depositor may, forward a
Servicer Notice to such Servicing Function Participant or the party hereto that
retained or engaged such Sub-Servicing Function Participant, as the case may be,
with a copy of such Servicer Notice to the Depositor (if the Trustee is sending
the Servicer Notice) or the Trustee (if the Depositor is sending the Servicer
Notice), as applicable, within two (2) Business Days of such failure. For the
purposes of this Section 3.14, as well as Section 3.13 and Section 7.01(v)(B) of
this Agreement, a "Servicer Notice" shall constitute either any writing
forwarded to such party or, in the case of the Master Servicer and the Special
Servicer, notwithstanding the provisions of Section 11.05, e-mail notice or fax
notice which, in the case of an email transmission, shall be forwarded to all of
the following e-mail addresses for the applicable party: in the case of the
Master Servicer, xxxx.xxxxxxxx@xxxxxxxx.xxx, xxxxxxx.xxxxxxx@xxxxxxxx.xxx and
xxxxxxxx.xxxxxxxxxx@xxxxxxxx.xxx, and in the case of the Special Servicer,
xxxxxxxx@xxxxxxxxxxx.xxx, xxxxxxxx@xxxxxxxxxxx.xxx and xxxxxxx@xxxxxxxxxxx.xxx,
or such other e-mail addresses as are provided in writing by the Master Servicer
or the Special Servicer, as applicable, to the Trustee and the Depositor;
provided that any party to this Agreement (or someone acting on their behalf)
shall only be required to forward any such notice to be delivered to the Master
Servicer to no more than three e-mail addresses in the aggregate in order to
fulfill its notification requirement as set forth in the preceding sentence
and/or under the provisions of Section 7.01(v)(B).
Any party hereto that retains or engages, during an Exchange Act
Reporting Year, a Servicing Representative (other than a Sub-Servicer identified
on Exhibit K hereto) that is, with respect to such Exchange Act Reporting Year,
a Sub-Servicing Function Participant shall so notify the Trustee (unless such
party is the Trustee) and the Depositor in writing promptly following such
party's becoming aware that such Servicing Representative is or has become a
Sub-Servicing Function Participant; and, further, if such Servicing
Representative does not deliver or cause the delivery of an Annual Assessment
Report, an Annual Attestation Report (together with, if required to be filed
with the Commission under applicable law, the consent of the applicable
registered public accounting firm to file
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such corresponding Annual Attestation Report with the Commission) with respect
to itself by March 15th of any year during which a Form 10-K is required to be
filed with the Commission with respect to the Trust, the party hereto that
retained or engaged such Servicing Representative shall promptly so notify the
Trustee (unless such party is the Trustee) and the Depositor in writing no later
than the second Business Day following such March 15th.
The Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent, in each case, to the extent applicable, will reasonably cooperate with
the Depositor in conforming any reports delivered pursuant to this Section 3.14
to requirements imposed by the Commission on the Depositor in connection with
the Depositor's reporting requirements in respect of the Trust pursuant to the
Exchange Act, provided that the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent shall each be entitled to charge the Depositor for
any reasonable additional costs and expenses incurred by it in affording the
Depositor such cooperation.
If any party hereunder is also acting as an Outside Servicer or
Outside Trustee with respect to an Outside Serviced Trust Mortgage Loan or
Outside Administered REO Property during any portion of an Exchange Act
Reporting Year in respect of the Trust, then such party shall, in its capacity
as such Outside Servicer or Outside Trustee, as the case may be, comply with the
provisions of this Section 3.14 applicable to the Master Servicer (if the
subject party is also acting as an Outside Master Servicer) or the Special
Servicer (if the subject party is also acting as an Outside Special Servicer) or
the Trustee (if the subject party is also acting as an Outside Trustee), as
applicable, but reflecting that such Outside Serviced Trust Mortgage Loan or
such Outside Administered REO Property is being serviced and administered under
the related Outside Servicing Agreement.
SECTION 3.15. Access to Certain Information.
(a) Each of the Master Servicer and the Special Servicer shall afford
to the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder and any
Certificate Owner (identified as such to the reasonable satisfaction of the
Master Servicer or the Special Servicer, as the case may be), and to the OTS,
the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder, any Certificate Owner (identified
as such to the reasonable satisfaction of the Master Servicer or the Special
Servicer, as the case may be) or any Serviced Non-Trust Mortgage Loan
Noteholder, access to any records regarding the Serviced Mortgage Loans and the
servicing thereof within its control (which access shall be limited, in the case
of any Serviced Non-Trust Mortgage Loan Noteholder or any regulatory authority
seeking such access in respect of a Serviced Non-Trust Mortgage Loan Noteholder,
to records relating to the related Serviced Non-Trust Mortgage Loan), except to
the extent it is prohibited from doing so by applicable law or contract or to
the extent such information is subject to a privilege under applicable law to be
asserted on behalf of the Certificateholders or the Serviced Non-Trust Mortgage
Loan Noteholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner, a
Serviced Non-Trust Mortgage Loan Noteholder or any regulatory authority that may
exercise authority over a Certificateholder, a Certificate Owner or a Serviced
Non-Trust Mortgage Loan Noteholder, the Master Servicer and the Special Servicer
each may
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require payment from such Certificateholder, a Certificate Owner or a Serviced
Non-Trust Mortgage Loan Noteholder of a sum sufficient to cover the reasonable
costs and expenses of providing such information or access, including copy
charges and reasonable fees for employee time and for space; provided that no
charge may be made if such information or access was required to be given or
made available under applicable law. In connection with providing
Certificateholders and Certificate Owners access to the information described in
the preceding paragraph, the Master Servicer and the Special Servicer shall
require (prior to affording such access) a written confirmation executed by the
requesting Person substantially in such form as may be reasonably acceptable to
the Master Servicer or the Special Servicer, as the case may be, generally to
the effect that such Person is a Holder of Certificates or a beneficial holder
of Book-Entry Certificates and will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
(b) No less often than on a monthly basis, upon reasonable prior
notice and during normal business hours, each of the Master Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
available to answer questions (if and to the extent the Master Servicer or the
Special Servicer, as the case may be, is responsible (or, in the case of the
Special Servicer, would be responsible upon the occurrence of a Servicing
Transfer Event) for the servicing thereof) from the following parties: (i) the
Controlling Class Representative regarding the performance and servicing of the
Mortgage Loans and/or the REO Properties; and (ii) the related Serviced Loan
Combination Controlling Party regarding the performance and servicing of each
Serviced Loan Combination and/or any related REO Property. Except as provided in
the following sentence, in connection with providing the Controlling Class
Representative with the information described in the preceding sentence, the
Master Servicer and the Special Servicer shall require (prior to providing such
information for the first time to such Controlling Class Representative) a
Controlling Class Representative Confirmation (as defined in Section 6.09(b)),
generally to the effect that such Person will keep any information received by
it from time to time pursuant to this Agreement confidential (other than with
respect to communications with the Controlling Class). In the case of the
initial Controlling Class Representative, upon its or an Affiliate's acquisition
of the Class T Certificates, such entity shall be deemed to have agreed to keep
all non-public information received by it in such capacity from time to time
pursuant to this Agreement confidential, subject to applicable law, and such
initial Controlling Class Representative shall be deemed to have made such
agreement without delivery of the Controlling Class Representative Confirmation.
SECTION 3.16. Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property (other than a Mortgaged
Property that secures an Outside Serviced Loan Combination) is acquired, the
deed or certificate of sale shall be issued to the Trustee or its nominee on
behalf of the Certificateholders and, in the case of a Mortgaged Property that
secures a Serviced Loan Combination, on behalf of the related Serviced Non-Trust
Mortgage Loan
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Noteholder(s). If, pursuant to Section 3.09(b), the Special Servicer formed or
caused to be formed, at the expense of the Trust, a single member limited
liability company (of which the Trust is the sole member) for the purpose of
taking title to one or more Administered REO Properties pursuant to this
Agreement, then (subject to the interests of any affected Serviced Non-Trust
Mortgage Loan Noteholder), the deed or certificate of sale with respect to any
such Administered REO Property shall be issued to such single member limited
liability company. The limited liability company shall be a manager-managed
limited liability company, with the Special Servicer to serve as the initial
manager to manage the property of the limited liability company, including any
applicable Administered REO Property, in accordance with the terms of this
Agreement as if such property was held directly in the name of the Trust or
Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund and, in the case of
any Administered REO Property that relates to a Serviced Loan Combination, the
related Serviced Non-Trust Mortgage Loan Noteholder(s), shall sell any
Administered REO Property by the end of the third calendar year following the
calendar year in which the applicable REMIC Pool acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies, more than 60 days prior to the end of such third
succeeding year, for and is granted an extension of time (an "REO Extension") by
the IRS to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, the Special Servicer and the Master Servicer,
to the effect that the holding by the applicable REMIC Pool of such Administered
REO Property subsequent to the end of such third succeeding year will not result
in the imposition of taxes on "prohibited transactions" (as defined in Section
860F of the Code) of any REMIC Pool or cause any REMIC Pool to fail to qualify
as a REMIC at any time that any Certificates are outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell the subject Administered REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its obtaining
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, or for the creation of and the operating of a single member
limited liability company, shall be covered by, and reimbursable as, a Servicing
Advance.
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any Administered REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur in
respect of any Mortgaged Property (other than a Mortgaged Property that secures
a Loan Combination), the Special Servicer shall establish and maintain one or
more accounts (collectively, the "Pool REO Account"), to be held on behalf of
the Trustee in trust for the sole benefit of the Certificateholders, for the
retention of revenues and other proceeds derived from each REO Property (other
than any REO Property that relates to a Loan Combination). If such REO
Acquisition occurs with respect to the Mortgaged Property that secures any
Serviced Loan Combination, then the Special Servicer shall establish one or more
accounts solely with respect to such property (the related "Loan Combination REO
Account"), to be held for the sole benefit of the Certificateholders and the
related Serviced Non-Trust Mortgage Loan Noteholder(s). The Pool REO Account and
each Loan Combination REO Account shall each be an Eligible Account. The Special
Servicer shall deposit, or cause to be deposited, in the applicable REO Account,
upon receipt, all REO Revenues, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of any Administered REO Property. Funds
in an REO Account (other than any such funds representing Additional Interest)
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may be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from an REO Account to
pay itself, as additional special servicing compensation in accordance with
Section 3.11(d), interest and investment income earned in respect of amounts
held in such REO Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to such REO Account for any related
Investment Period). The Special Servicer shall give notice to the Trustee and
the Master Servicer of the location of each REO Account, and shall give notice
to the related Serviced Non-Trust Mortgage Loan Noteholder(s) of the location of
any Loan Combination REO Account, in each case when first established and of the
new location of any such REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any Administered REO Property, but only to the extent of amounts
on deposit in such REO Account relating to such REO Property. On the Business
Day following each Trust Determination Date, the Special Servicer shall withdraw
from any Pool REO Account and deposit into the Pool Custodial Account (or
deliver to the Master Servicer or such other Person as may be designated by the
Master Servicer for deposit into the Pool Custodial Account) the aggregate of
all amounts received in respect of each Administered REO Property (other than
any Administered REO Property relating to a Serviced Loan Combination) during
the Trust Collection Period ending on such Trust Determination Date, net of any
withdrawals made out of such amounts pursuant to the preceding sentence and,
further, net of any reserves to be maintained in the Pool REO Account in
accordance with the last sentence of this Section 3.16(c). On the Business Day
following each related Loan Combination Determination Date, the Special Servicer
shall withdraw from the Loan Combination REO Account related to any Serviced
Loan Combination and deposit into the Loan Combination Custodial Account that
relates to such Serviced Loan Combination (or deliver to the Master Servicer or
such other Person as may be designated by the Master Servicer for deposit into
such Loan Combination Custodial Account) the aggregate of all amounts received
in respect of any Administered REO Property that relates to such Serviced Loan
Combination during the related Loan Combination Collection Period ending on such
related Loan Combination Determination Date, net of any withdrawals made out of
such amounts pursuant to the second preceding sentence and, further, net of any
reserves to be maintained in the related Loan Combination REO Account in
accordance with the last sentence of this Section 3.16(c). Notwithstanding the
foregoing, the Special Servicer may retain in the related REO Account such
portion of proceeds and collections in respect of any Administered REO Property
as may be necessary to maintain a reserve of sufficient funds for the proper
operation, management, leasing, maintenance and disposition of such REO Property
(including the creation of a reasonable reserve for repairs, replacements,
necessary capital replacements and other related expenses), such reserve not to
exceed an amount sufficient to cover such items to be incurred during the
following 12-month period.
(d) The Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, each REO Account pursuant to Section 3.16(b) or (c). The
Special Servicer shall provide the Master Servicer any information with respect
to each REO Account as is reasonably requested by the Master Servicer.
(e) Notwithstanding anything to the contrary, this Section 3.16 shall
not apply to any Outside Administered REO Property.
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SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged Property
(other than a Mortgaged Property that secures an Outside Serviced Loan
Combination), the Special Servicer shall review the operation of such Mortgaged
Property and determine the nature of the income that would be derived from such
property if it were acquired by the Trust Fund. If the Special Servicer
determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code (either
such tax referred to herein as an "REO Tax"), then such Mortgaged Property
may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided that in the good faith and reasonable judgment of the Special
Servicer, it is commercially reasonable) acquire such Mortgaged Property as
REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust Fund incurring or possibly incurring an REO
Tax on income from such property, the Special Servicer shall deliver to the
Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan shall include potential
sources of income, and, to the extent reasonably possible, estimates of the
amount of income from each such source. Upon request of the Special
Servicer, the Tax Administrator shall advise the Special Servicer of the
Tax Administrator's federal income tax reporting position with respect to
the various sources of income that the Trust Fund would derive under the
Proposed Plan. After receiving the information described in the preceding
sentence from the Tax Administrator, the Special Servicer shall implement
the Proposed Plan (after acquiring the respective Mortgaged Property as REO
Property), with any amendments required to be made thereto as a result of
the Tax Administrator's tax reporting position.
The Special Servicer's decision as to how each Administered REO
Property shall be managed and operated shall be based on the Servicing Standard
and, further, based on the good faith and reasonable judgment of the Special
Servicer as to which means would be in the best interest of the
Certificateholders (and, in the case of any Administered REO Property related to
a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, by maximizing (to the extent commercially
reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues
received with respect to such property without materially impairing the Special
Servicer's ability to promptly sell such property for a fair price. In
connection with performing their respective duties under this Section 3.17(a),
both the Special Servicer and the Tax Administrator may
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consult with counsel and tax accountants, the reasonable cost of which
consultation shall be covered by, and be reimbursable as, a Servicing Advance to
be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders (and, in the case of any Administered REO
Property related to a Serviced Loan Combination, the related Serviced Non-Trust
Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition
and sale in a manner that does not and will not: (i) cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii)
except as contemplated by Section 3.17(a), either result in the receipt by any
REMIC Pool of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an
Adverse Grantor Trust Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the related REO Account, to the extent
of amounts on deposit therein with respect to any Administered REO Property,
funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the related REO Account in
respect of any Administered REO Property are insufficient for the purposes set
forth in the preceding sentence with respect to such REO Property, the Master
Servicer shall, at the direction of the Special Servicer, make Servicing
Advances in such amounts as are necessary for such purposes unless the Master
Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to
such Administered REO Property, if the New Lease, by its terms would give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
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(iii) authorize or permit any construction on such Administered
REO Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the related
Serviced Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate such Administered REO Property
on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer, at the
direction of the Special Servicer, and shall be reimbursable as a Servicing
Advance) to the effect that such action would not cause such Administered REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at
any time that it is held by a REMIC Pool, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor
for the operation and management of any Administered REO Property; provided
that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund and, in the case of any Administered REO
Property that relates to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in
consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that the
Independent Contractor, in a timely manner, (A) pay out of related REO
Revenues all costs and expenses incurred in connection with the operation
and management of such Administered REO Property, including those listed in
Section 3.17(b) above, and (B) except to the extent that such revenues are
derived from any services rendered by the Independent Contractor to tenants
of such Administered REO Property that are not customarily furnished or
rendered in connection with the rental of real property (within the meaning
of Section 1.856-4(b)(5) of the Treasury regulations or any successor
provision), remit all related revenues collected (net of its fees and such
costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
Administered REO Property.
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The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.16 and this Section 3.17 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
(e) Notwithstanding anything to the contrary, this Section 3.17 shall
not apply to any Outside Administered REO Property.
SECTION 3.18. Sale of Trust Mortgage Loans and Administered REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may sell
or purchase, or permit the sale or purchase of, a Trust Mortgage Loan or
Administered REO Property only in connection with a Permitted Purchase of such
Trust Mortgage Loan or Administered REO Property, as the case may be, and/or in
connection with a sale of such Administered REO Property in accordance with this
Section 3.18.
(b) Within five (5) Business Days after the Special Servicer has
knowledge that any Trust Mortgage Loan has become a Specially Serviced Trust
Mortgage Loan, the Special Servicer shall give notice of such event to the
related Serviced Non-Trust Mortgage Loan Noteholder(s) (if such Trust Mortgage
Loan is part of a Serviced Loan Combination), each Holder of a Certificate of
the Controlling Class and the Trustee. The Special Servicer, any single
Certificateholder or any group of Certificateholders entitled to a majority of
the Voting Rights allocated to the Controlling Class and any assignees of the
foregoing parties (collectively, the "Purchase Option Holders") shall each have
the option to purchase such Specially Serviced Trust Mortgage Loan at a cash
price that is at least equal to the Purchase Price; provided that the Special
Servicer has determined in its reasonable and good faith judgment that a
material default exists with respect to such Specially Serviced Trust Mortgage
Loan. The Special Servicer shall accept the first offer by a Purchase Option
Holder that is at least equal to the Purchase Price for the subject Trust
Mortgage Loan.
(c) If none of the Purchase Option Holders exercises its option to
purchase any Specially Serviced Trust Mortgage Loan as described in subsection
(b) above, then each Purchase Option Holder will also have the option to
purchase that Specially Serviced Trust Mortgage Loan at a price equal to the
fair value (the "FV Price") of such Specially Serviced Trust Mortgage Loan;
provided that a material default exists with respect to such Specially Serviced
Trust Mortgage Loan. Upon receipt of a request from any Purchase Option Holder
to determine the FV Price in contemplation of its intention to exercise its
option to purchase a Specially Serviced Trust Mortgage Loan as to which a
material default exists at a price that is below the Purchase Price, the Special
Servicer shall promptly obtain an MAI appraisal (the cost of which shall be
covered by a Servicing Advance) of the related Mortgaged Property by an
Independent Appraiser (unless such an appraisal was obtained within one year of
such date and the Special Servicer has no knowledge of any circumstances that
would materially affect the validity of such appraisal). Promptly after
obtaining such appraisal, the Special Servicer shall determine the FV Price for
the subject Specially Serviced Trust Mortgage Loan in accordance with the
Servicing Standard and the provisions of subsection (i) below. Promptly after
determining such FV Price, the Special Servicer shall report such FV Price to
the Trustee and each Purchase Option Holder.
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(d) If the Special Servicer determines that it is willing, or another
Purchase Option Holder notifies the Special Servicer that it is willing, to
purchase any Specially Serviced Trust Mortgage Loan as to which a material
default exists (the party submitting such bid, the "Initial Bidder") at a price
equal to or above the FV Price (a "FV Bid"), then the Special Servicer shall
notify all other Purchase Option Holders that it has made or received, as the
case may be, such FV Bid (without disclosing the amount of such FV Bid). All
other Purchase Option Holders may submit competing bids within the ten (10)
Business Day period following such notice. At the conclusion of the
above-described ten (10) Business Day period, the Special Servicer shall accept
the highest bid received from any Purchase Option Holder that is at least equal
to the FV Price for the subject Specially Serviced Trust Mortgage Loan.
(e) If the Special Servicer accepts the bid of any Purchase Option
Holder, such Purchase Option Holder shall be required to purchase the subject
Specially Serviced Trust Mortgage Loan within ten (10) Business Days of receipt
of notice of such acceptance; provided, that neither the Special Servicer nor
any Holder of a Certificate of the Controlling Class shall be liable for the
failure of any assignee whose bid has been accepted by the Special Servicer to
complete any such purchase.
(f) If the Special Servicer has not accepted a FV Bid prior to the
expiration of 120 days from its determination of the FV Price and thereafter
receives a FV Bid or a request from a Purchase Option Holder for an updated FV
Price, the Special Servicer shall within 45 days recalculate the FV Price (with
no presumption that such FV Price should be reduced on account of the lack of an
FV Bid) and repeat the notice and bidding procedure provided in subsection (d)
above until the purchase option terminates under subsection (j) below.
(g) If the party exercising the purchase option at the FV Price for
any Specially Serviced Trust Mortgage Loan is the Special Servicer or an
Affiliate thereof, the Trustee shall verify that the FV Price of such Trust
Mortgage Loan is at least equal to the fair value of such Trust Mortgage Loan.
In conducting such verification, the Trustee will be permitted to conclusively
rely on an appraisal obtained by the Trustee from an Independent Appraiser at
the time it is required to verify such FV Price and/or the opinion of an
Independent expert in real estate matters (including the Master Servicer) with
at least five years' experience in valuing or investing in loans, similar to the
subject Specially Serviced Trust Mortgage Loan, that has been selected by the
Trustee with reasonable care at the expense of the Trust Fund.
(h) Any Purchase Option Holder may, once such purchase option is
exercisable pursuant to this Section 3.18, assign its purchase option with
respect to any Specially Serviced Trust Mortgage Loan to a third party other
than the related Mortgagor or, if such assignment would violate the terms of any
related co-lender, intercreditor or similar agreement, any Affiliate of the
related Mortgagor; and, upon such assignment such third party shall have all of
the rights that had been granted to the Purchase Option Holder hereunder in
respect of the purchase option. Such assignment shall only be effective upon
written notice (together with a copy of the executed assignment and assumption
agreement) being delivered to the Trustee, the Master Servicer and the Special
Servicer. Any Purchase Option Holder that acquires, pursuant to this Section
3.18, a Trust Mortgage Loan that is part of a Loan Combination must satisfy the
requirements for an acceptable transferee under the related Co-Lender Agreement.
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(i) In determining the FV Price for any Specially Serviced Trust
Mortgage Loan under this Section 3.18, the Special Servicer may take into
account, among other factors, the results of any appraisal or updated appraisal
(the cost of which shall constitute a Servicing Advance) that it or the Master
Servicer may have obtained in accordance with this Agreement within the prior
twelve months; the opinions on fair value expressed by Independent investors in
mortgage loans comparable to the subject Specially Serviced Trust Mortgage Loan;
the period and amount of any delinquency on the subject Specially Serviced Trust
Mortgage Loan; the physical condition of the related Mortgaged Property; the
state of the local economy; and the expected recoveries from the subject
Specially Serviced Trust Mortgage Loan if the Special Servicer were to pursue a
workout or foreclosure strategy instead of selling such Mortgage Loan to a
Purchase Option Holder.
(j) The purchase option for any Specially Serviced Trust Mortgage Loan
pursuant to this Section 3.18 shall terminate, and shall not be exercisable as
set forth in subsections (b) and (c) above (or if exercised, but the purchase of
such Specially Serviced Mortgage Loan has not yet occurred, shall terminate and
be of no further force or effect) if and when (i) the Special Servicer has
accepted a FV Bid (although the purchase option shall resume if the Person that
submitted that FV Bid does not complete the purchase of the subject Specially
Serviced Trust Mortgage within the time period provided for under Section
3.18(e)), (ii) such Specially Serviced Trust Mortgage Loan has become a
Corrected Mortgage Loan or is otherwise no longer in material default, (iii) the
related Mortgaged Property has become an REO Property, (iv) a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan or (v) the subject Specially Serviced Trust Mortgage Loan has been removed
from the Trust Fund.
(k) Notwithstanding anything herein to the contrary, if and for so
long as an Outside Serviced Trust Mortgage Loan constitutes a "Specially
Serviced Mortgage Loan" (or the equivalent) under the related Outside Servicing
Agreement as to which there exists a material default, then such Outside
Serviced Trust Mortgage Loan shall be deemed a "Specially Serviced Trust
Mortgage Loan" for purposes of, and be subject to the purchase options
contemplated by, Sections 3.18(b) through 3.18(j); provided that the FV Price
described above may be calculated based upon, among other things, appraisals and
other reasonably appropriate information obtained from the related Outside
Servicers under the related Outside Servicing Agreement. If the Special Servicer
has received insufficient information from the applicable Outside Servicer with
respect to any such Outside Serviced Trust Mortgage Loan in order to establish a
FV Price, it will base such determination only on a current Appraisal and on
information otherwise available or reasonably obtainable by it, at the expense
of the Trust. In addition, if the Special Servicer is determining a FV Price
with respect to any Outside Serviced Trust Mortgage Loan and has not received
from the applicable Outside Servicer an appraisal with respect to the Mortgaged
Property securing such Outside Serviced Trust Mortgage Loan that is dated within
the 12 month period prior to the determination of the FV Price, then the Special
Servicer shall obtain, at the expense of the Trust, a new Appraisal of the
subject Mortgaged Property. If the Special Servicer determines that a FV Price
cannot be established for any such Outside Serviced Trust Mortgage Loan based on
a current Appraisal and other information available to it, then none of the
purchase option holders will be permitted to exercise the purchase option at a
FV Price. In connection with the foregoing, the Special Servicer will be
entitled to a separate fee of $1,500 per loan payable from the Pool Custodial
Account for making a FV Price determination with respect to any such Outside
Serviced Trust Mortgage Loan, in addition to being entitled to withdraw from the
Pool Custodial Account any out-of-pocket expenses associated with making such FV
Price determination.
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(l) Until such time as a FV Bid is accepted with respect to any
Specially Serviced Trust Mortgage Loan, the Special Servicer shall continue to
pursue all of the other resolution options available to it with respect to such
Specially Serviced Trust Mortgage Loan in accordance with the Servicing
Standard.
(m) Any Specially Serviced Trust Mortgage Loan that is purchased
pursuant to the purchase option provided for in this Section 3.18 will remain
subject to any cure and/or purchase rights of any holder of a related mezzanine
loan in connection with a Mortgage Loan default as set forth in the related
intercreditor agreement. In addition, any Trust Mortgage Loan that is part of a
Loan Combination and is purchased pursuant to the purchase option provided for
in this Section 3.18 will remain subject to any cure and/or purchase rights of
the related Serviced Non-Trust Mortgage Loan Noteholder(s) provided for under
the related Co-Lender Agreement. If any Serviced Loan Combination is comprised
of Specially Serviced Mortgage Loans and the Special Servicer has determined a
FV Price with respect to the related Combination Trust Mortgage Loan in
accordance with this Section 3.18, the Special Servicer shall provide to the
related Non-Trust Mortgage Loan Noteholder(s) all material information in its
possession that has formed the basis of such FV Price, including the most
current Appraisal in its possession.
(n) The Special Servicer shall use its best efforts to solicit offers
for each Administered REO Property in such manner as will be reasonably likely
to realize a fair price within the time period provided for by Section 3.16(a).
Subject to Section 6.11 and/or Section 6.12, if and as applicable, the Special
Servicer shall accept the first (and, if multiple bids are received
contemporaneously or subsequently, the highest) cash offer received from any
Person that constitutes a fair price for such Administered REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price for any Administered REO Property within the time constraints imposed by
Section 3.16(a), then (subject to Section 6.11 and/or Section 6.12, in each case
if and as applicable) the Special Servicer shall dispose of such Administered
REO Property upon such terms and conditions as the Special Servicer shall deem
necessary and desirable to maximize the recovery thereon under the circumstances
and, in connection therewith, shall accept the highest outstanding cash bid,
regardless of from whom received.
(o) The Special Servicer shall give the Trustee and the Depositor
prior written notice of its intention to sell any Administered REO Property
pursuant to this Section 3.18.
(p) No Interested Person shall be obligated to submit an offer to
purchase any Administered REO Property, and notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Administered REO Property pursuant
hereto.
(q) Whether any cash offer constitutes a fair price for any
Administered REO Property for purposes of this Section 3.18, shall be determined
by the Special Servicer or, if such cash offer is from the Special Servicer or
an Affiliate of the Special Servicer, by the Trustee. In determining whether any
offer received from the Special Servicer or an Affiliate of the Special Servicer
represents a fair price for any Administered REO Property, the Trustee shall be
supplied with and shall be entitled to rely on the most recent appraisal in the
related Servicing File conducted in accordance with this Agreement within the
preceding 12-month period (or, in the absence of any such appraisal or if there
has been a material change at the subject Administered REO Property since any
such appraisal, on a new
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appraisal to be obtained by the Special Servicer (the cost of which shall be
covered by, and be reimbursable as, a Servicing Advance)). The appraiser
conducting any such new appraisal shall be an Independent Appraiser selected by
the Special Servicer if neither the Special Servicer nor any Affiliate thereof
is bidding with respect to an Administered REO Property and selected by the
Trustee if either the Special Servicer or any Affiliate thereof is so bidding.
Where any Interested Person is among those bidding with respect to an
Administered REO Property, the Special Servicer shall require that all offers be
submitted to it (and, if the Special Servicer or any Affiliate thereof is
bidding, to the Trustee) in writing and be accompanied by a refundable deposit
of cash in an amount equal to 5% of the offer amount. In determining whether any
offer from a Person other than itself or one of its Affiliates constitutes a
fair price for any Administered REO Property, the Special Servicer shall take
into account the results of any appraisal or updated appraisal that it or the
Master Servicer may have obtained in accordance with this Agreement within the
prior 12 months, and any Independent Appraiser shall be instructed to take into
account, as applicable, among other factors, the occupancy level and physical
condition of the subject Administered REO Property, the state of the local
economy and the obligation to dispose of the subject Administered REO Property
within the time period specified in Section 3.16(a). The Purchase Price for any
Administered REO Property shall in all cases be deemed a fair price.
Notwithstanding the other provisions of this Section 3.18, no cash offer from
the Special Servicer or any Affiliate thereof shall constitute a fair price for
any Administered REO Property unless such offer is the highest cash offer
received and at least two independent offers (not including the offer of the
Special Servicer or any Affiliate thereof) have been received. In the event the
offer of the Special Servicer or any Affiliate thereof is the only offer
received or is the higher of only two offers received, then additional offers
shall be solicited. If an additional offer or offers, as the case may be, are
received and the original offer of the Special Servicer or any Affiliate thereof
is the highest of all cash offers received, then the offer of the Special
Servicer or such Affiliate shall be accepted, provided that the Trustee has
otherwise determined, as provided above in this Section 3.18(q), that such offer
constitutes a fair price for any Administered REO Property. Any offer by the
Special Servicer shall be unconditional; and, if accepted, the subject
Administered REO Property shall be transferred to the Special Servicer without
recourse, representation or warranty other than customary representations as to
title given in connection with the sale of a real property.
(r) Subject to Sections 3.18(a) through 3.18(q) above, and further
subject to Section 6.11 and/or Section 6.12, in each case if and as applicable,
the Special Servicer shall act on behalf of the Trustee in negotiating with
independent third parties seeking to purchase an Administered REO Property and
taking any other action necessary or appropriate in connection with the sale of
any Specially Serviced Trust Mortgage Loan or Administered REO Property pursuant
to this Section 3.18, and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
bidders for any Administered REO Property, and may retain, fees that approximate
the Special Servicer's actual costs in the preparation and delivery of
information pertaining to, or evaluating bids for, such Administered REO
Property without obligation to deposit such amounts into any Custodial Account.
Any sale of a Specially Serviced Trust Mortgage Loan or an Administered REO
Property pursuant to this Section 3.18 shall be final and without recourse to
the Trustee or the Trust, and if such sale is consummated in accordance with the
terms of this Agreement, neither the Special Servicer nor the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(s) Any sale of a Specially Serviced Trust Mortgage Loan or an
Administered REO Property pursuant to this Section 3.18 shall be for cash only
and shall be on a servicing released basis.
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SECTION 3.19. Additional Obligations of the Master Servicer and
Special Servicer; Obligations to Notify Ground Lessors and Hospitality
Franchisors; the Special Servicer's Right to Request the Master Servicer to Make
Servicing Advance.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Collection Account on each Trust Master Servicer Remittance Date, without
any right of reimbursement therefor, an amount equal to the lesser of: (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments Received by the Trust, during the most
recently ended applicable Collection Period, with respect to Performing Serviced
Trust Mortgage Loans and, if it constitutes a "Performing Serviced Mortgage
Loan" (or the equivalent) under the related Outside Servicing Agreement, any
Outside Serviced Trust Mortgage Loan; and (ii) the sum of (1) the aggregate of
all Master Servicing Fees received by the Master Servicer during such Collection
Period with respect to the entire Mortgage Pool (but only to the extent of that
portion thereof calculated at a rate of 0.01% per annum with respect to each and
every Trust Mortgage Loan and REO Trust Mortgage Loan) and (2) the aggregate
amount of Prepayment Interest Excesses received in respect of the entire
Mortgage Pool during such Collection Period; provided, however, that if any
Prepayment Interest Shortfall occurs with respect to any Serviced Trust Mortgage
Loan as a result of the Master Servicer's allowing the Mortgagor to deviate from
the terms of the related loan documents regarding principal prepayments, the
Master Servicer shall be obligated to pay an amount equal to the entire
Prepayment Interest Shortfall with respect to the subject Serviced Trust
Mortgage Loan without any limitation of the kind set forth in clauses (1) and
(2) above.
(b) The Master Servicer shall, as to each Serviced Trust Mortgage Loan
which is secured by the interest of the related Mortgagor under a Ground Lease,
even if the corresponding fee interest is encumbered, promptly (and in any event
within 60 days) following the Closing Date, notify the related ground lessor of
the transfer of such Serviced Trust Mortgage Loan to the Trust Fund pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to the Master Servicer.
(c) The Master Servicer shall, as to each Serviced Trust Mortgage Loan
which is secured by the interest of the related Mortgagor in a hospitality
property (as identified on Schedule VI hereto), not later than the later of (i)
30 days following the Master Servicer's receipt of the subject franchise
agreement and (ii) the expiration of the period that may be required for such
notice pursuant to the terms of the applicable franchise documents, if any,
notify the related hospitality franchisor of the transfer of such Serviced Trust
Mortgage Loan to the Trust Fund pursuant to this Agreement and inform such
hospitality franchisor that any notices of default under the related franchise
agreement should thereafter be forwarded to the Master Servicer.
(d) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5) Business Days (or, in an
emergency situation or on an urgent basis, two (2) Business Days, provided that
the written request sets forth the nature of the emergency or the basis of the
urgency) in advance of the date on which such Servicing Advance is required to
be made hereunder and to be accompanied by such information and documentation
regarding the subject Servicing Advance as the Master Servicer may reasonably
request.
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The Master Servicer shall have the obligation to make any such Servicing Advance
that it is so requested by the Special Servicer to make, within five (5)
Business Days (or, in an emergency situation or on an urgent basis, two (2)
Business Days) of the Master Servicer's receipt of such request. If the request
is timely and properly made, the Special Servicer shall be relieved of any
obligations with respect to a Servicing Advance that it so requests the Master
Servicer to make (regardless of whether or not the Master Servicer shall make
such Servicing Advance). The Master Servicer shall be entitled to reimbursement
for any Servicing Advance made by it at the direction of the Special Servicer,
together with interest thereon in accordance with Sections 3.05(a) or 3.05A
and/or 3.11(g), as applicable, at the same time, in the same manner and to the
same extent as the Master Servicer is entitled with respect to any other
Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d), the
Master Servicer shall not be required to make at the direction of the Special
Servicer, any Servicing Advance if the Master Servicer determines in its
reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination, which shall be made pursuant
to Section 3.11(h). Any request by the Special Servicer that the Master Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Master Servicer, the Trustee and any Fiscal Agent shall be
entitled to conclusively rely on such determination. Upon making a
determination, in accordance with the applicable requirements under Section
3.11(h), that any Servicing Advance previously made or proposed to be made with
respect to a Specially Serviced Mortgage Loan or an Administered REO Property is
a Nonrecoverable Servicing Advance, the Special Servicer shall report its
determination to the Master Servicer and the Trustee. The Master Servicer, the
Trustee and any Fiscal Agent shall be entitled to conclusively rely on such a
determination by the Special Servicer.
(e) The Master Servicer (if a Performing Serviced Trust Mortgage Loan
is involved) and the Special Servicer (if a Specially Serviced Trust Mortgage
Loan or an REO Trust Mortgage Loan is involved) shall each be responsible for:
(i) providing on a timely basis to any lender of any related mezzanine debt such
notices (including with respect to Mortgage Loan defaults), reports and other
information as may be required from the Trust, as holder of any Trust Mortgage
Loan, under any related co-lender, intercreditor or similar agreement; and (ii)
otherwise taking such actions as are required under or contemplated by the
related co-lender, intercreditor or similar agreement to permit any lender of
related mezzanine debt to exercise any purchase option or cure rights that it
may have with respect to any Trust Mortgage Loan under such related co-lender,
intercreditor or similar agreement.
(f) Upon termination of the Trust Fund, any funds or other assets
remaining in the Loss of Value Reserve Fund, to the extent not otherwise
required to be part of the Available Distribution Amount for the Final
Distribution Date in accordance with Section 3.05(e), shall be distributed to
the Holder or Holders of the Class R-III Certificates. The Trustee shall account
for the Loss of Value Reserve Fund as an outside reserve fund within the meaning
of Treasury regulations section 1.860G-2(h) and not an asset of any REMIC Pool
or the Grantor Trust (if created hereunder taking into account Section 2.05(b)).
Furthermore, for all federal tax purposes, the Trustee shall treat: (i) any
amounts paid out of the Loss of Value Reserve Fund to the Certificateholders as
distributions by the REMIC Pools for all federal tax purposes; and (ii) any
amounts transferred by a REMIC Pool to the Loss of Value Reserve Fund as amounts
distributed by such REMIC Pool to the beneficial owner of the Loss of Value
Reserve
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Fund. The Holder or Holders of the Class R-III Certificates will be the sole
beneficial owner(s) of the Loss of Value Reserve Fund for all income and
franchise tax purposes.
(g) [RESERVED]
(h) In connection with a mediation and/or arbitration proceeding
conducted in accordance with Section 2.03(i) hereof or Section 5(i) of any
UMLS/Depositor Mortgage Loan Purchase Agreement, as the case may be, in the
event that the Master Servicer is the party acting on behalf of the Trust in
such mediation and/or arbitration proceeding and such mediation and/or
arbitration proceeding relates to a Specially Serviced Trust Mortgage Loan, the
Master Servicer shall consult with the Special Servicer prior to consenting to
or entering into any final resolution, settlement or agreement with respect
thereto.
(i) Without the prior written consent of the applicable Mortgage Loan
Seller, the Master Servicing Group (as defined below) shall not disclose to any
Person employed by the Master Servicer or an affiliate thereof that is part of a
business unit that originates or refinances mortgage loans any information that
the Master Servicing Group has received or obtained or generated or is otherwise
in its possession as a result of its acting as Master Servicer hereunder. In
addition, without the prior written consent of the applicable Mortgage Loan
Seller, the Master Servicing Group shall not take any direct action, nor will it
direct a third party to take any action, to refinance or solicit the refinancing
of any Mortgage Loan. For purposes of this Section 3.19(i), the "Master
Servicing Group" shall mean the business unit of the Master Servicer (which,
with respect to Wachovia Bank, National Association, is called Commercial Real
Estate Services) that is in the business of master servicing and/or primary
servicing commercial mortgage loans that are in securitizations. Notwithstanding
the foregoing, the following shall not constitute violations of this Section
3.19(i): (i) dissemination of information or reports as contemplated by this
Agreement, (ii) promotions undertaken by the Master Servicer or any Affiliate of
the Master Servicer which are directed to commercial mortgage loan borrowers,
originators and mortgage brokers generally, which promotions, in each case, are
based upon information that has been acquired from a source other than the
Master Servicing Group, including, without limitation, commercially acquired
mailing lists or information generally available in the public domain, (iii)
actions taken in connection with serving the refinancing needs of a Mortgagor
who, without such solicitation by the Master Servicer as described in the second
preceding sentence, contacts the Master Servicer in connection with the
refinance of such Mortgage Loan, or (iv) actions taken or communications made by
the Master Servicing Group in connection with the sale or refinance of a
Specially Serviced Mortgage Loan.
(j) If any Serviced Mortgage Loan provides that the applicable grace
period during which any Monthly Payment is due (without giving rise to a
default) does not commence until after notice is given to the related Mortgagor,
then the Master Servicer shall monitor the receipt of all Monthly Payments with
respect to such Mortgage Loan. If any such Monthly Payment on any such Mortgage
Loan is not received by the related Due Date, then the Master Servicer shall use
reasonable efforts to provide, in accordance with the Servicing Standard, as
soon as reasonably practicable, written notice of such failure to the related
Mortgagor sufficient to cause the commencement of the applicable grace period.
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SECTION 3.20. Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.20(b) through 3.20(f) and 3.20(m) below, and
further subject to Section 3.08, Section 6.11 and/or Section 6.12, in each case
if and as applicable, and any related intercreditor, co-lender or similar
agreement (including, in the case of a Mortgage Loan that is part of a Serviced
Loan Combination, the related Co-Lender Agreement), the Special Servicer and/or
the Master Servicer may, on behalf of the Trustee and, in the case of a Serviced
Non-Trust Mortgage Loan, the related Serviced Non-Trust Mortgage Loan
Noteholder, agree to any modification, extension, waiver or amendment of any
term of any Serviced Mortgage Loan and respond to various Mortgagor requests for
consent on the part of the mortgagee (including the lease reviews and lease
consents related thereto), without the consent of the Trustee, any
Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder, the Master
Servicer (in the case of any such action taken by the Special Servicer) or,
except as expressly set forth below, the Special Servicer (in the case of any
such action taken by the Master Servicer). Neither the Master Servicer nor the
Special Servicer (in its capacity as such) may agree with the related Mortgagor
to any modification, extension, waiver or amendment of an Outside Serviced
Mortgage Loan.
(b) All modifications, extensions, waivers or amendments of any
Serviced Mortgage Loan, including the lease reviews and lease consents related
thereto, shall be in writing (except for waivers of Default Charges) and shall
be considered and effected in a manner consistent with the Servicing Standard.
All modifications, extensions, waivers or amendments of a Co-Lender Agreement or
any other intercreditor agreement relating to a Serviced Mortgage Loan shall be
in writing and shall be considered and effected in a manner consistent with the
Servicing Standard.
(c) In the case of any Performing Serviced Mortgage Loan, the Master
Servicer shall (without the consent of the Trustee, any Certificateholder, any
Serviced Non-Trust Mortgage Loan Noteholder or, except as expressly set forth
herein, the Special Servicer, the Controlling Class Representative or a Loan
Combination Controlling Party), be responsible for the following:
(i) consenting to subordination of the lien of the subject
Performing Serviced Mortgage Loan to an easement, right-of-way or similar
agreement for utilities, access, parking, public improvements or another
purpose, and consenting to subordination of the related Mortgage Loan to
such easement or right-of way provided the Master Servicer shall have
determined in accordance with the Servicing Standard that such easement or
right-of-way shall not materially interfere with the then-current use of
the related Mortgaged Property, the security intended to be provided by the
related Mortgage, or the related Mortgagor's ability to repay the subject
Performing Serviced Mortgage Loan, or materially or adversely affect the
value of the related Mortgaged Property, or cause the subject Performing
Serviced Mortgage Loan to cease to be a "qualified mortgage" for REMIC
purposes;
(ii) granting waivers of minor covenant defaults (other than
financial covenants) including late financial statements;
(iii) granting releases of non-material parcels of the related
Mortgaged Property, releases of the related Mortgaged Property in
connection with a defeasance or a pending or threatened condemnation and
releases of the related Mortgaged Property expressly required under the
related loan documents;
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(iv) approving routine leasing activity (including any
subordination, standstill and attornment agreements) with respect to any
lease for less than the lesser of (A) 20,000 square feet and (B) 20% of the
related Mortgaged Property;
(v) approving a change of the property manager at the request of
the related Mortgagor, provided that (A) the successor property manager is
not affiliated with the Mortgagor and is a nationally or regionally
recognized manager of similar properties, (B) the subject Mortgage Loan
does not have an outstanding principal balance in excess of $5,000,000 and
(C) the subject Mortgaged Property does not secure a Loan Combination;
(vi) approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor, provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter;
(vii) approving annual budgets for the related Mortgaged
Property; provided that no such budget (A) provides for the payment of
operating expenses in an amount equal to more than 110% of the amounts
budgeted therefor for the prior year or (B) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than the payment
of a management fee to any property manager if such management fee is no
more than the management fee in effect on the Cut-off Date);
(viii) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a specified
number of days notice prior to a Principal Prepayment;
(ix) approving modifications, consents or waivers (other than
those set forth in Sections 3.20(d) and (e)) in connection with a
defeasance permitted by the terms of the subject Performing Serviced
Mortgage Loan if the Master Servicer receives an Opinion of Counsel (which
Opinion of Counsel shall be an expense of the Mortgagor) to the effect that
such modification, waiver or consent would not cause any REMIC Pool to fail
to qualify as a REMIC under the Code or result in a "prohibited
transaction" under the REMIC Provisions; provided that the Master Servicer
shall not approve any modification that would reduce the amount of the
Defeasance Collateral required to be delivered in connection with any such
defeasance;
(x) subject to the satisfaction of any conditions precedent set
forth herein or in the related loan documents, and provided there is no
lender discretion with respect to such disbursement, approving
disbursements of any earnout or holdback amounts in accordance with the
related loan documents;
(xi) waiving provisions of the loan documents for the subject
Performing Serviced Mortgage Loan requiring the receipt of a rating
confirmation, provided that receipt of such rating confirmation is not
otherwise expressly required herein, the subject Performing Serviced
Mortgage Loan is not one of the then 10 largest Trust Mortgage Loans (by
balance) and the related provision of the subject Performing Serviced
Mortgage Loan does not relate to a "due-on sale" or "due-on encumbrance"
clause or to defeasance (other than in connection with a defeasance which
does not require receipt of a ratings confirmation from either Rating
Agency pursuant to Section 3.20(k)), release or substitution of collateral,
insurance, ratings of depositories or issuers of letters of credit,
investment of funds in Servicing Accounts or Reserve
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Accounts, or conversion of a Mortgaged Property (or any portion thereof) to
condominium ownership; and
(xii) granting other similar non-material waivers, consents,
modifications or amendments.
provided that, (1) any such modification, waiver or amendment would not in any
way affect a payment term (including (except as provided in Section 3.20(o)
below) a waiver of the payment of assumption fees) of the subject Performing
Serviced Mortgage Loan (other than in the case of a waiver of the payment of
Default Charges), (2) agreeing to such modification, waiver or amendment would
be consistent with the Servicing Standard and (3) agreeing to such modification,
waiver or amendment will not violate the terms, provisions or limitations of
this Agreement. With respect to any action proposed to be taken by the Master
Servicer under this Section 3.20(c) where any thresholds in clauses (i) through
(xii) of the preceding sentence are exceeded, or which cannot be taken by the
Master Servicer by reason of the proviso to the previous sentence, the Master
Servicer can take such action only with the consent of the Special Servicer (if
and to the extent otherwise permitted under this Agreement).
The Master Servicer may not agree to waive, modify or amend any term
of any Specially Serviced Mortgage Loan; and, except as permitted by Section
3.02(a), Section 3.03(d), Section 3.07, Section 3.08(a), Section 3.08(c), this
Section 3.20(c), Section 3.20(m) and Section 3.20(o), or otherwise as expressly
provided in this Agreement, the Master Servicer may not agree to waive, modify
or amend any term of any Performing Serviced Mortgage Loan (including allowing
the Mortgagor to deviate from the terms of the related loan documents regarding
principal prepayments) or respond to any Mortgagor requests for mortgagee
consent (and shall forward such requests to the Special Servicer for processing,
along with any information in the possession of the Master Servicer that the
Special Servicer may reasonably request related thereto). Furthermore, the
Master Servicer may not in any event agree to any modification, extension,
waiver or amendment of any term of any Serviced Mortgage Loan that would cause
an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor
Trust Event with respect to the Grantor Trust (if created hereunder taking into
account Section 2.05(b)).
(d) Except as provided in Section 3.02(a), Section 3.07, Section 3.08,
Section 3.20(e), Section 3.20(m) and Section 3.20(o), the Special Servicer, on
behalf of the Trustee or, in the case of a Serviced Non-Trust Mortgage Loan, the
related Serviced Non-Trust Mortgage Loan Noteholder, shall not agree or consent
to (or consent to the Master Servicer's agreeing or consenting to) any
modification, extension, waiver or amendment of any term of any Serviced
Mortgage Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Default Charges and, subject to Section
3.20(o), other amounts payable as additional servicing compensation)
payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge, or effectuate the waiver of
any prepayment restriction thereunder or permit a Principal Prepayment
during any period in which the related loan documents prohibit Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
in connection with condemnation or defeasance or pursuant to Section
3.09(d), result in a release of
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the lien of the Mortgage on any material portion of the related Mortgaged
Property without a corresponding Principal Prepayment in an amount not less
than the fair market value (as determined by an appraisal by an Independent
Appraiser delivered to the Special Servicer at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely) of the
property to be released; or
(iv) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impair the security for such Mortgage Loan
or reduce the likelihood of timely payment of amounts due thereon.
Furthermore, the Special Servicer may not agree to any modification,
extension, waiver or amendment of any term of any Serviced Mortgage Loan that
would cause an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to the Grantor Trust (if created hereunder
taking into account Section 2.05(b)).
(e) Notwithstanding Section 3.20(d), but subject to Section 3.20(o),
Section 6.11 and/or Section 6.12, in each case if and as applicable, and the
second and third paragraphs of this Section 3.20(e), the Special Servicer may--
(i) reduce the amounts owing under any Specially Serviced
Mortgage Loan by forgiving principal, accrued interest (including
Additional Interest) or any Prepayment Premium or Yield Maintenance Charge,
(ii) reduce the amount of the Monthly Payment on any Specially
Serviced Mortgage Loan, including by way of a reduction in the related
Mortgage Rate,
(iii) forbear in the enforcement of any right granted under any
Mortgage Note, Mortgage or other loan document relating to a Specially
Serviced Mortgage Loan,
(iv) accept a Principal Prepayment on any Specially Serviced
Mortgage Loan during any Lockout Period, or
(v) extend the maturity of any Specially Serviced Mortgage Loan;
provided that (A) the related Mortgagor is in monetary default or material
non-monetary default with respect to such Specially Serviced Mortgage Loan or,
in the reasonable, good faith judgment of the Special Servicer, such default is
reasonably foreseeable, (B) in the reasonable, good faith judgment of the
Special Servicer, such modification, extension, waiver or amendment would
increase the recovery on such Specially Serviced Mortgage Loan to
Certificateholders (as a collective whole) or, if a Serviced Loan Combination is
involved, would increase the recovery on such Loan Combination to
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders (or, in the case of a Serviced Loan Combination, to
Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s)), to be
performed at the related Mortgage Rate(s)), and (C) such modification,
extension, waiver or amendment would not cause an Adverse REMIC Event in respect
of any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor
Trust (if created hereunder taking into account Section 2.05(b)); and provided,
further, that any modification, extension, waiver or amendment of the payment
terms of a Serviced Loan
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Combination shall be structured so as to be consistent with the allocation and
payment priorities set forth in the related loan documents and the related
Co-Lender Agreement, such that neither the Trust, as holder of the Trust
Mortgage Loan that constitutes part of that Serviced Loan Combination, on the
one hand, nor any of the related Serviced Non-Trust Mortgage Loan Noteholders,
on the other hand, shall gain a priority over any other such holder with respect
to any payment, which priority is not, as of the date of the related Co-Lender
Agreement, reflected in such loan documents and such Co-Lender Agreement; and
provided, further, that, with respect to any Serviced Loan Combination, to the
extent consistent with the Servicing Standard (taking into account the extent to
which any Serviced Subordinate Non-Trust Mortgage Loan that is part of such
Serviced Loan Combination is junior to the Trust Mortgage Loan and any Pari
Passu Non-Trust Mortgage Loan that is part of the same Serviced Loan
Combination), (1) no waiver, reduction or deferral of any particular amounts due
on the Trust Mortgage Loan or any Pari Passu Non-Trust Mortgage Loan that is
part of such Serviced Loan Combination shall be effected prior to the waiver,
reduction or deferral of the entire corresponding item in respect of each
Serviced Subordinate Non-Trust Mortgage Loan, if any, that is part of such
Serviced Loan Combination, and (2) no reduction of the Mortgage Rate on the
Trust Mortgage Loan or any Pari Passu Non-Trust Mortgage Loan that is part of
such Serviced Loan Combination shall be effected prior to the reduction of the
Mortgage Rate on each Serviced Subordinate Non-Trust Mortgage Loan, if any, that
is part of such Serviced Loan Combination, to the fullest extent possible.
Notwithstanding the foregoing, in no event shall the Special Servicer:
(i) extend the maturity date of a Serviced Mortgage Loan beyond the date that is
two (2) years prior to the Rated Final Distribution Date; (ii) extend the
maturity date of any Serviced Mortgage Loan for more than five (5) years beyond
its Stated Maturity Date; (iii) if the subject Serviced Mortgage Loan is secured
solely or primarily by a Mortgage on the leasehold interest under a Ground Lease
(but not the related fee interest), extend the maturity date of such Serviced
Mortgage Loan beyond the date which is twenty (20) years (or, to the extent
consistent with the Servicing Standard, giving due consideration to the
remaining term of the Ground Lease, ten (10) years) prior to the expiration of
the term of such Ground Lease; or (iv) permit the release or substitution of a
Mortgaged Property or any material portion thereof (other than as expressly
provided in this Agreement or the related Mortgage Loan documents) unless it has
received written confirmation from each Rating Agency that such action will not
result in an Adverse Rating Event with respect to any Class of Certificates
rated by such Rating Agency.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer (and, in the case of a Serviced Loan Combination, the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) and describing in reasonable
detail the basis for the Special Servicer's determination. The Special Servicer
shall attach to such Officer's Certificate any information including but not
limited to income and expense statements, rent rolls, property inspection
reports and appraisals that support such determination.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall give any consent, approval or direction regarding the termination of the
related property manager or the designation of any replacement property manager
or, if such Mortgaged Property is hospitality property, give any consent,
approval or direction regarding the termination of the franchise or the
designation of a new franchise, with respect to any Mortgaged Property that
secures a Serviced Trust Mortgage Loan that has an unpaid principal balance that
is at least equal to the lesser of $35,000,000 and 5% of the then aggregate
principal balance of the
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Mortgage Pool or is one of the ten (10) largest (measured by unpaid principal
balance) Trust Mortgage Loans in the Mortgage Pool, unless: (1) the mortgagee is
not given discretion under the terms of the related Mortgage Loan to withhold
its consent; or (2) it has received prior written confirmation from each Rating
Agency (and, if applicable in connection with a Serviced Loan Combination that
includes a Specially Designated Securitized Non-Trust Mortgage Loan, Xxxxx'x)
that such action will not result in an Adverse Rating Event with respect to any
Class of Certificates or class of Specially Designated Non-Trust Mortgage Loan
Securities rated by such rating agency.
Any party hereto seeking rating agency confirmation with respect to
the matters described above shall deliver a Review Package to such rating
agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of
such modification, extension, waiver or amendment so permit. The foregoing shall
in no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise collectible under the terms of the related Mortgage
Note.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, extension, waiver
or indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Serviced Mortgage Loan and, further, by the terms of this Agreement and
applicable law, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request, and (ii) any related costs
and expenses incurred by it. Any such fee that is to be shared by the Master
Servicer and the Special Servicer may not be waived or reduced by either such
party without the consent of the other party. In no event shall the Special
Servicer or Master Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify the
other, any related Sub-Servicers, the Trustee and, if a Serviced Non-Trust
Mortgage Loan is affected, the related Serviced Non-Trust Mortgage Loan
Noteholder, in writing, of any modification, extension, waiver or amendment of
any term of any Serviced Mortgage Loan (including fees charged the Mortgagor)
agreed to by it and the date thereof, and shall deliver to the Trustee or any
related Custodian for deposit in the related Mortgage File (with a copy to be
delivered to or retained by, as applicable, the Master Servicer and, if a
Serviced Non-Trust Mortgage Loan is affected, the related Serviced Non-Trust
Mortgage Loan Noteholder), an executed counterpart of the agreement relating to
such modification, extension, waiver or amendment promptly following execution
and delivery thereof, to be followed by an original recorded counterpart
promptly following the recordation (and receipt) thereof.
(j) To the extent that either the Master Servicer or Special Servicer
waives any Default Charge in respect of any Serviced Mortgage Loan, whether
pursuant to Section 3.02(a) or this Section 3.20, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
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(k) If, with respect to any Serviced Mortgage Loan (1) under which the
lender can require defeasance in lieu of prepayment, or (2) that permits
defeasance, the Master Servicer shall receive a notice from the related
Mortgagor that it intends to prepay or defease, as applicable, such Serviced
Mortgage Loan in accordance with the terms thereof, then the Master Servicer
shall, subject to the next paragraph and the related loan documents, (i) only in
the case of a Serviced Mortgage Loan under clause (1) above, promptly respond to
such notice in a manner which would require that the Mortgagor pledge Defeasance
Collateral in lieu of such prepayment pursuant to the terms of the related
Mortgage Note, and (ii) upon the written confirmation from each Rating Agency
(and, if applicable, if a Serviced Loan Combination that includes a Specially
Designated Securitized Non-Trust Mortgage Loan is involved, and any related
Specially Designated Non-Trust Mortgage Loan Securities are rated by Xxxxx'x,
from Xxxxx'x) that the acceptance of a pledge of the Defeasance Collateral (or,
in the case of a Serviced Mortgage Loan under clause (1) above, that the
acceptance of a pledge of the Defeasance Collateral in lieu of a full
prepayment) will not result in an Adverse Rating Event with respect to any Class
of Certificates or class of Specially Designated Non-Trust Mortgage Loan
Securities rated by such rating agency, take such further action as provided in
such Mortgage Note to effectuate such defeasance, including the purchase and
perfection of the Defeasance Collateral on behalf of the Trustee (as mortgagee
of record on behalf of the Certificateholders and, in the case of a Serviced
Loan Combination, the affected Serviced Non-Trust Mortgage Loan Noteholder(s));
provided that the written confirmation contemplated by clause (iii) above shall
not be required (A) with respect to S&P in the case of a Serviced Trust Mortgage
Loan (1) with an unpaid principal balance less than or equal to $35,000,000, (2)
that constitutes less than 5% of the aggregate unpaid principal balance of the
Mortgage Pool and (3) that does not then constitute one of the ten largest
(measured by unpaid principal balance) Trust Mortgage Loans in the Mortgage
Pool, so long as, in lieu of obtaining such written confirmation from S&P, the
Master Servicer delivers to S&P a certification in the form attached hereto as
Exhibit M (a "Defeasance Certificate"), or (B) with respect to Fitch in the case
of any Serviced Trust Mortgage Loan (1) with an unpaid principal balance less
than or equal to $25,000,000, (2) that constitutes less than 5% of the aggregate
unpaid principal balance of the Mortgage Pool and (3) that does not then
constitute one of the ten (10) largest (measured by unpaid principal balance)
Trust Mortgage Loans in the Mortgage Pool; and provided, further, that, the
written confirmation contemplated by clause (iii) above shall not be required
from S&P and/or Fitch (provided the Master Servicer delivers a Defeasance
Certificate to S&P), as applicable, in the event the subject Serviced Trust
Mortgage Loan complies with the then current applicable guidelines set forth by
such Rating Agency, or the unpaid principal balance of the subject Serviced
Trust Mortgage Loan, the percentage the subject Serviced Trust Mortgage Loan
constitutes of the Mortgage Pool or the relative size of the subject Serviced
Trust Mortgage Loan with respect to the Mortgage Pool, as applicable, does not
exceed the then current applicable threshold for review as set forth by such
Rating Agency.
Notwithstanding the foregoing, but subject to the related loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under any Serviced Mortgage Loan that is also a Defeasance Mortgage
Loan if (i) such defeasance would occur within two (2) years of the Startup Day,
(ii) the defeasance collateral shall not be Government Securities, (iii) an
opinion of counsel confirming that the Trustee has a first priority security
interest in the Defeasance Collateral is not delivered, (iv) the defeased note
is not held by a special purpose entity with no material assets other than
Defeasance Collateral, (v) a certification from a firm of independent public
accountants confirming the adequacy of the Defeasance Collateral is not
delivered, (vi) all costs to be incurred in connection with such defeasance
(including Rating Agency fees, accountants' fees and costs incurred in
connection with any required opinions of counsel) would not be paid by the
related Mortgagor, or (vii) unless such
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confirmation is not required pursuant to the first paragraph of this Section
3.20(k), either Rating Agency does not confirm in writing to the Master Servicer
that the acceptance of a pledge of the Defeasance Collateral (in lieu of a full
prepayment, if applicable) will not result in an Adverse Rating Event with
respect to any Class of Certificates rated by such Rating Agency.
All expenses related to the defeasance of a Serviced Mortgage Loan
shall be charged to the related Mortgagor or other responsible party.
With respect to any Defeasance Serviced Trust Mortgage Loan, to the
extent the related Mortgage Loan documents expressly grant the lender or its
designee the right to appoint a successor borrower (or words of similar import)
thereunder in connection with a defeasance, the Trustee hereby designates LBHI
(if such Defeasance Serviced Trust Mortgage Loan is a Xxxxxx Trust Mortgage
Loan) or the related Unaffiliated Mortgage Loan Seller (if such Defeasance
Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan) as its
designee with respect to the exercise of, and hereby grants to LBHI (if such
Defeasance Serviced Trust Mortgage Loan is a Xxxxxx Trust Mortgage Loan) or the
related Unaffiliated Mortgage Loan Seller (if such Defeasance Serviced Trust
Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan) the right, in its capacity as
designee of the Trustee as holder of the subject Serviced Trust Mortgage Loan,
to exercise, the right and/or obligation of the lender under the related
Mortgage Loan documents to appoint a "successor borrower" (as defined under the
related Mortgage Loan documents) or words of similar import, to hold and pledge
the related Defeasance Collateral in the event a related Mortgagor exercises its
right pursuant to the related Mortgage Loan documents to defease the subject
Serviced Trust Mortgage Loan and obtain the release of all or a portion of the
related Mortgaged Property from the lien of the related Mortgage (provided that
such rights and/or obligations as successor borrower shall be exercised in
accordance with customary terms and costs). In connection with the foregoing, if
the Master Servicer or the Trustee, as holder of the subject Defeasance Serviced
Trust Mortgage Loan, receives written notice from the related Mortgagor that it
intends to defease the subject Defeasance Serviced Trust Mortgage Loan in
accordance with the related Mortgage Loan documents, then the Trustee or the
Master Servicer, as the case may be, shall send a copy of such written notice to
LBHI (if such Defeasance Serviced Trust Mortgage Loan is a Xxxxxx Trust Mortgage
Loan) or the related Unaffiliated Mortgage Loan Seller (if such Defeasance
Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan) or (if LBHI or
the related Unaffiliated Mortgage Loan Seller, as the case may be, has notified
the Master Servicer or the Trustee, as the case may be, in writing that it has
appointed a designee and has provided such party with such designee's contact
information for any notice required in connection therewith) the designee of
LBHI or the related Unaffiliated Mortgage Loan Seller, as the case may be,
promptly after receipt of such written notice. If, however, the Master Servicer,
in accordance with the Servicing Standard, determines that neither LBHI nor its
designee (if such Defeasance Serviced Trust Mortgage Loan is a Xxxxxx Trust
Mortgage Loan) or neither the related Unaffiliated Mortgage Loan Seller nor its
designee (if such Defeasance Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust
Mortgage Loan), as the case may be, is performing the duties related to the
appointment of a successor borrower in a timely manner and/or in accordance with
the provisions of the related Mortgage Loan documents (after LBHI or the related
Unaffiliated Mortgage Loan Seller, as the case may be, and the applicable
designee having been provided with written notice in accordance with this
paragraph and a reasonable period of time (which shall not be less than five (5)
Business Days) to perform such duties), then the Master Servicer (or a designee
of the Master Servicer) shall itself perform those obligations under the related
Mortgage Loan documents in accordance with the Servicing Standard, applicable
law and the related Mortgage Loan documents, and thereupon the appointment of
LBHI or its designee (if such Defeasance Serviced Trust Mortgage Loan is a
Xxxxxx Trust Mortgage Loan), or the related Unaffiliated Mortgage Loan Seller or
its designee (if such Defeasance Serviced Trust Mortgage Loan is a Non-Xxxxxx
Trust Mortgage Loan), as the case may be, in connection therewith shall be null
and void. In the event, with respect to a Defeasance Serviced Trust Mortgage
Loan, that LBHI or its designee (if such Defeasance Serviced Trust Mortgage Loan
is a Xxxxxx
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Trust Mortgage Loan), the related Unaffiliated Mortgage Loan Seller or its
designee (if such Defeasance Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust
Mortgage Loan), or the Master Servicer or a designee of the Master Servicer,
actually appoints a successor borrower in accordance with the related Mortgage
Loan documents and the foregoing provisions of this paragraph and the relevant
portion or all, as applicable, of the subject Mortgaged Property is released
from the lien of the related Mortgage, then, to the extent provided under the
related Mortgage Loan documents, such successor borrower shall succeed to all of
the rights and obligations of the original Mortgagor under such Defeasance
Serviced Trust Mortgage Loan. If LBHI or the related Unaffiliated Mortgage Loan
Seller, as the case may be, by written notice to the Trustee and the Master
Servicer, designates a third part