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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer,
CENTERLINE SERVICING INC.,
as General Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator and as Tax Administrator,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2007
---------------------------------
$2,502,224,530
Aggregate Initial Certificate Principal Balance
---------------------------------
Commercial Mortgage Pass-Through Certificates
Series 2007-PWR18
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS
IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms....................................................................................................8
SECTION 1.02. General Interpretive Principles.................................................................................81
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool............................................................82
SECTION 1.04. Cross-Collateralized Mortgage Loans.............................................................................84
SECTION 1.05. Incorporation of Preliminary Statement..........................................................................84
ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF
REMIC I REGULAR INTERESTS, REMIC II REGULAR INTERESTS, REMIC III COMPONENTS, REMIC I RESIDUAL
INTEREST, REMIC II RESIDUAL INTEREST, REMIC III RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01. Conveyance of Pooled Mortgage Loans.............................................................................85
SECTION 2.02. Acceptance of Mortgage Assets by Trustee........................................................................90
SECTION 2.03. Certain Repurchases and Substitutions of Pooled Mortgage Loans by the Pooled Mortgage Loan Sellers..............92
SECTION 2.04. Representations and Warranties of the Depositor.................................................................97
SECTION 2.05. Representations and Warranties of PAR as a Master Servicer......................................................98
SECTION 2.06. Representations and Warranties of WFB as a Master Servicer......................................................99
SECTION 2.07. Representations and Warranties of the General Special Servicer.................................................100
SECTION 2.08. Representations and Warranties of the Loan Specific Special Servicers..........................................102
SECTION 2.09. Representations and Warranties of the Certificate Administrator................................................103
SECTION 2.10. Representations and Warranties of the Tax Administrator........................................................104
SECTION 2.11. Representations, Warranties and Covenants of the Trustee.......................................................105
SECTION 2.12. Creation of REMIC I; Issuance of the REMIC I Regular Interests and the REMIC I Residual Interest;
Certain Matters Involving REMIC I..............................................................................106
SECTION 2.13. Conveyance of the REMIC I Regular Interests; Acceptance of the REMIC I Regular Interests by Trustee............109
SECTION 2.14. Creation of REMIC II; Issuance of the REMIC II Regular Interests and the REMIC II Residual Interest;
Certain Matters Involving REMIC II.............................................................................109
SECTION 2.15. Conveyance of the REMIC II Regular Interests; Acceptance of the REMIC II Regular Interests by Trustee..........110
SECTION 2.16. Creation of REMIC III; Issuance of the REMIC III Regular Interests, the REMIC III Components and the
REMIC III Residual Interest; Certain Matters Involving REMIC III...............................................111
SECTION 2.17. Acceptance of Grantor Trusts; Issuance of the Class V, Class R Certificates....................................114
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.............................................................................................115
SECTION 3.02. Collection of Mortgage Loan Payments...........................................................................119
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts.......................123
SECTION 3.04. Collection Accounts, Distribution Account, Interest Reserve Account, Excess Liquidation Proceeds Account,
Companion Note Custodial Accounts and Subordinate Note Custodial Accounts......................................125
SECTION 3.05. Permitted Withdrawals From the Collection Accounts, the Distribution Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account, the Companion Note Custodial Accounts and the
Subordinate Note Custodial Accounts............................................................................132
SECTION 3.06. Investment of Funds in the Accounts............................................................................146
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage..................................148
SECTION 3.08. Enforcement of Alienation Clauses..............................................................................152
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage Loans.............................................................155
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files................................................................158
SECTION 3.11. Master Servicing and Special Servicing Compensation; Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee Regarding Back-up Servicing Advances...................160
SECTION 3.12. Property Inspections; Collection of Financial Statements.......................................................168
SECTION 3.13. [Reserved].....................................................................................................169
SECTION 3.14. [Reserved].....................................................................................................169
SECTION 3.15. Access to Information..........................................................................................169
SECTION 3.16. Title to Administered REO Property; REO Account................................................................170
SECTION 3.17. Management of Administered REO Property........................................................................172
SECTION 3.18. Fair Value Option; Sale of Administered REO Properties; Sale of the Non-Trust- Serviced Pooled Mortgage
Loan...........................................................................................................175
SECTION 3.19. Additional Obligations of Master Servicers and Special Servicer................................................181
SECTION 3.20. Modifications, Waivers, Amendments and Consents................................................................184
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer and Applicable Special Servicer; Record Keeping.......190
SECTION 3.22. Sub-Servicing Agreements and the Primary Servicing Agreements..................................................191
SECTION 3.23. Controlling Class Representative...............................................................................195
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative..............................................197
SECTION 3.25. Replacement of Special Servicers...............................................................................201
SECTION 3.26. Application of Default Charges.................................................................................203
SECTION 3.27. Certain Matters Regarding the Southlake Mall Loan Group........................................................205
SECTION 3.28. Certain Matters Regarding the Serviced Mortgage Loans Groups that include PCFII Pooled Mortgage Loans..........205
SECTION 3.29. Certain Matters Regarding the HRC Portfolio 3 Loan Group, the HRC Portfolio 1 Loan Group and the HRC
Portfolio 2 Loan Group.........................................................................................205
SECTION 3.30. Certain Matters Regarding the Circuit City San Xxxxxx Loan Group...............................................206
SECTION 3.31. General Acknowledgement Regarding Non-Pooled Mortgage Loan Noteholders.........................................206
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..................................................................................................207
SECTION 4.02. Certificate Administrator Reports; Servicer Reporting..........................................................221
SECTION 4.03. P&I Advances...................................................................................................231
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses...............................................235
SECTION 4.05. Calculations...................................................................................................238
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...............................................................................................239
SECTION 5.02. Registration of Transfer and Exchange of Certificates..........................................................239
SECTION 5.03. Book-Entry Certificates........................................................................................246
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............................................................247
SECTION 5.05. Persons Deemed Owners..........................................................................................247
SECTION 5.06. Certification by Certificate Owners............................................................................247
SECTION 5.07. Appointment of Authenticating Agents...........................................................................248
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND THE SPECIAL SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers, the Primary Servicers and the Special Servicers..............249
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a Master Servicer or the Special Servicer................249
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicers, the Primary Servicers and the Special
Servicers......................................................................................................249
SECTION 6.04. Resignation of the Master Servicers and the Special Servicers..................................................251
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicers and the Special Servicers...........252
SECTION 6.06. Master Servicers, the Primary Servicers and Special Servicers May Own Certificates.............................252
SECTION 6.07. Indemnification of Non-Trust Master Servicers and Non-Trust Special Servicers..................................253
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default..............................................................................................254
SECTION 7.02. Trustee to Act; Appointment of Successor.......................................................................258
SECTION 7.03. Notification to Certificateholders.............................................................................259
SECTION 7.04. Waiver of Events of Default....................................................................................260
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default...........................................................260
ARTICLE VIII
THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE ADMINISTRATOR
AND THE TAX ADMINISTRATOR
SECTION 8.01. Duties of the Trustee, the Custodian, the Certificate Administrator and the Tax Administrator..................261
SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate Administrator and the Tax Administrator.................263
SECTION 8.03. The Trustee, the Certificate Administrator and the Tax Administrator not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans..................................................................264
SECTION 8.04. The Trustee, the Certificate Administrator and the Tax Administrator May Own Certificates......................264
SECTION 8.05. Fees and Expenses of the Trustee, the Certificate Administrator and the Tax Administrator;
Indemnification of and by the Trustee, the Certificate Administrator and the Tax Administrator.................265
SECTION 8.06. Eligibility Requirements for the Trustee, the Certificate Administrator and the Tax Administrator..............266
SECTION 8.07. Resignation and Removal of the Trustee, the Certificate Administrator and the Tax Administrator................268
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax Administrator.............................................269
SECTION 8.09. Merger or Consolidation of the Trustee, the Certificate Administrator or the Tax Administrator.................269
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..................................................................270
SECTION 8.11. Appointment of Custodians......................................................................................270
SECTION 8.12. Access to Certain Information..................................................................................271
SECTION 8.13. Appointment of Fiscal Agent....................................................................................272
SECTION 8.14. Representations and Warranties of any Fiscal Agent.............................................................273
SECTION 8.15. Advance Security Arrangement...................................................................................274
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Pooled Mortgage Loans........................................276
SECTION 9.02. Additional Termination Requirements............................................................................278
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.............................................................................................280
SECTION 10.02. The Depositor, the Master Servicers and the Special Servicers to Cooperate with the Tax Administrator..........283
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
SECTION 11.01. Intent of the Parties; Reasonableness..........................................................................285
SECTION 11.02. [Reserved.]....................................................................................................285
SECTION 11.03. Information to be Provided by the Master Servicers, the Special Servicers, the Primary Servicers and the
Certificate Administrator......................................................................................285
SECTION 11.04. [Reserved.]....................................................................................................287
SECTION 11.05. Filing Obligations.............................................................................................287
SECTION 11.06. Form 10-D Filings..............................................................................................287
SECTION 11.07. Form 10-K Filings..............................................................................................290
SECTION 11.08. Xxxxxxxx-Xxxxx Certification...................................................................................293
SECTION 11.09. Form 8-K Filings...............................................................................................294
SECTION 11.10. Form 15 Filing; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports............................295
SECTION 11.11. Annual Compliance Statements...................................................................................296
SECTION 11.12. Annual Reports on Assessment of Compliance with Servicing Criteria.............................................297
SECTION 11.13. Annual Independent Public Accountants' Servicing Report........................................................298
SECTION 11.13A. USAP Alternative...............................................................................................298
SECTION 11.14. Indemnification................................................................................................300
SECTION 11.15. Amendments.....................................................................................................301
SECTION 11.16. Exchange Act Report Signatures.................................................................................301
SECTION 11.17. Termination of the Trustee, the Certificate Administrator and Sub-Servicers....................................302
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment......................................................................................................303
SECTION 12.02. Recordation of Agreement; Counterparts.........................................................................305
SECTION 12.03. Limitation on Rights of Certificateholders.....................................................................305
SECTION 12.04. Governing Law..................................................................................................306
SECTION 12.05. Notices........................................................................................................306
SECTION 12.06. Severability of Provisions.....................................................................................307
SECTION 12.07. Successors and Assigns; Beneficiaries..........................................................................307
SECTION 12.08. Article and Section Headings...................................................................................307
SECTION 12.09. Notices to and from the Rating Agencies and the Depositor......................................................307
SECTION 12.10. Notices to Controlling Class Representative....................................................................308
SECTION 12.11. Complete Agreement.............................................................................................309
EXHIBITS
EXHIBIT A-1 Form of Certificate (other than Class R and Class V Certificates)
EXHIBIT A-2 Form of Class R Certificate
EXHIBIT A-3 Form of Class V Certificate
EXHIBIT B Letters of Representations Among Depositor, Trustee and Initial Depositary
EXHIBIT C-1 Form of Master Servicer Request for Release
EXHIBIT C-2 Form of Special Servicer Request for Release
EXHIBIT D-1 Form of Certificate Administrator Report
EXHIBIT D-2 Minimum Information for Certificate Administrator Report
EXHIBIT E-1 Form of Centerline Interest on Advance Reconciliation Report
EXHIBIT E-2 Form of Centerline Mortgage Loans Delinquent Report
EXHIBIT X-0 Xxxx xx Xxxxxxxxxx X&X Advances as of Remittance Date Report
EXHIBIT E-4 Form of Realized Loss Template
EXHIBIT E-5 Centerline Naming Convention for Electronic File Delivery
EXHIBIT E-6 Controlling Class Certificateholder's Reports Checklist
EXHIBIT F-1 Form of Transferor Certificate for Transfers of Non-Registered Certificates Held in Physical Form
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered Certificates Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered Certificates Held in Physical Form
EXHIBIT F-2C Form of Transferee Certificate for Certain Transfers of Interests in Rule 144A Global Certificates
EXHIBIT F-2D Form of Transferee Certificate for Certain Transfers of Interests in Regulation S Global Certificates
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA (Non-Registered Certificates and Non-Investment
Grade Certificates Held in Physical Form)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA (Non-Registered Certificates Held in Book-Entry
Form)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of the Special Servicer
EXHIBIT I-2 Form of Acknowledgment of a Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT K-2 Information Request from Prospective Investor
EXHIBIT L Form of Power of Attorney by Trustee
EXHIBIT M-1 Form of Xxxxxxxx-Xxxxx Certification
EXHIBIT M-2 Form of Xxxxxxxx-Xxxxx Backup Certification
EXHIBIT N Form of Final Certification of Trustee
EXHIBIT O Form of Defeasance Certification
EXHIBIT P Form of Outside Master Servicer Notice
EXHIBIT Q Form of Additional Disclosure Notification
EXHIBIT R Copy of Nationwide Primary Servicer Undertaking to Indemnify
EXHIBIT S Formula for Adjustment of Non-Trust Administrative Fee Accrual Rate From 30/360 Basis to Actual/360 Basis
(if Applicable)
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SCHEDULES
SCHEDULE I-A Schedule of PMCF Pooled Mortgage Loans
SCHEDULE I-B Schedule of BSCMI Pooled Mortgage Loans
SCHEDULE I-C Schedule of WFB Pooled Mortgage Loans
SCHEDULE I-D [Reserved]
SCHEDULE I-E Schedule of PCFII Pooled Mortgage Loans
SCHEDULE I-F Schedule of Nationwide Pooled Mortgage Loans
SCHEDULE II Schedule of Exceptions to Mortgage File Delivery (under Section 2.02(a))
SCHEDULE III Schedule of Designated Sub-Servicers
SCHEDULE IV Reference Rates
SCHEDULE V Borrower Third-Party Beneficiaries (under Section 2.03)
SCHEDULE VI Class A-AB Planned Principal Balances
SCHEDULE VII Closing Date Deposit Mortgage Loans and Related Closing Date Deposit Amounts
SCHEDULE VIII Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE IX Additional Form 10-D Disclosure
SCHEDULE X Additional Form 10-K Disclosure
SCHEDULE XI Form 8-K Disclosure Information
SCHEDULE XII Significant Obligors, Related Financial Reporting Dates and Certain Related Information (For Purposes of
Sections 11.06 and 11.07)
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This Pooling and Servicing Agreement (this "Agreement"), is dated
and effective as of December 1, 2007, among BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC., as Depositor, PRUDENTIAL ASSET RESOURCES, INC., as a Master
Servicer, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Master Servicer,
CENTERLINE SERVICING INC., as General Special Servicer, XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Certificate Administrator and as Tax Administrator, and
LASALLE BANK NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder
in multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
REMIC I
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Pooled Mortgage Loans (exclusive of certain
amounts payable thereon) and certain other assets as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as "REMIC
I". The Class R Certificates will represent ownership of (among other things)
the sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions under federal income tax law. The Latest Possible Maturity Date for
each REMIC I Regular Interest is the Rated Final Distribution Date. None of the
REMIC I Regular Interests will be certificated.
REMIC II
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 Certificates will represent ownership of
(among other things) the sole class of "residual interests" in REMIC II for
purposes of the REMIC Provisions under federal income tax law. The following
table sets forth the designation, the REMIC II Remittance Rate and the initial
Uncertificated Principal Balance for each of the REMIC II Regular Interests. The
Latest Possible Maturity Date for each REMIC II Regular Interest is the Rated
Final Distribution Date. None of the REMIC II Regular Interests will be
certificated.
REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- ----------------------
A-1-1 Variable (1) $ 5,527,059
A-1-2 Variable (1) $ 69,364,000
A-2-1 Variable (1) $ 14,667,000
A-2-2 Variable (1) $ 88,885,000
A-2-3 Variable (1) $ 86,285,000
A-2-4 Variable (1) $ 102,063,000
A-3-1 Variable (1) $ 221,106,000
A-3-2 Variable (1) $ 48,594,000
A-AB-1 Variable (1) $ 20,492,000
A-AB-2 Variable (1) $ 111,408,000
A-4-1 Variable (1) $ 141,304,000
A-4-2 Variable (1) $ 77,352,000
A-4-3 Variable (1) $ 491,342,000
A-1A-1 Variable (1) $ 656,000
A-1A-2 Variable (1) $ 13,222,000
A-1A-3 Variable (1) $ 13,861,000
A-1A-4 Variable (1) $ 13,630,000
A-1A-5 Variable (1) $ 29,751,000
A-1A-6 Variable (1) $ 29,280,000
REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- ----------------------
A-1A-7 Variable (1) $ 45,037,000
A-1A-8 Variable (1) $ 8,427,000
A-1A-9 Variable (1) $ 118,551,000
A-M Variable (1) $ 211,557,000
AM-A Variable (1) $ 38,916,000
A-J Variable (1) $ 182,468,000
AJ-A Variable (1) $ 33,566,000
B-1 Variable (1) $ 18,073,000
B-2 Variable (1) $ 6,974,000
C-1 Variable (1) $ 17,950,000
C-2 Variable (1) $ 7,097,000
D-1 Variable (1) $ 6,070,000
D-2 Variable (1) $ 12,716,000
E Variable (1) $ 25,047,000
F-1 Variable (1) $ 14,597,000
F-2 Variable (1) $ 4,189,000
G Variable (1) $ 25,047,000
H-1 Variable (1) $ 18,753,000
H-2 Variable (1) $ 3,163,000
J Variable (1) $ 18,786,000
K-1 Variable (1) $ 16,289,000
K-2 Variable (1) $ 8,758,000
L Variable (1) $ 9,393,000
M Variable (1) $ 9,393,000
N Variable (1) $ 9,392,000
O Variable (1) $ 6,262,000
P Variable (1) $ 3,131,000
Q Variable (1) $ 3,131,000
S Variable (1) $ 40,702,471
_________________
(1) The REMIC II Remittance Rate for each REMIC II Regular Interest
shall be a variable rate per annum calculated in accordance with the
definition of "REMIC II Remittance Rate".
REMIC III
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 Certificates will evidence ownership of
(among other things) the sole class of "residual interests" in REMIC III for
purposes of the REMIC Provisions under federal income tax law.
Class Designations of the REMIC III Regular Interests
The following table irrevocably sets forth the Class designation,
Pass-Through Rate and initial Class Principal Balance for each Class of the
REMIC III Regular Interests.
-2-
Class Initial Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
Class A-1 5.038% per annum $ 74,891,059
Class A-2 5.613% per annum $ 291,900,000
Class A-3 5.957% per annum $ 269,700,000
Class A-AB 5.926% per annum $ 131,900,000
Class A-4 5.700% per annum $ 709,998,000
A-1A 5.602% per annum $ 272,415,000
Class A-M Variable (1) $ 211,557,000
Class AM-A Variable (1) $ 38,916,000
Class A-J Variable (2) $ 182,468,000
Class AJ-A Variable (2) $ 33,566,000
Class B Variable (2) $ 25,047,000
Class C Variable (2) $ 25,047,000
Class D Variable (2) $ 18,786,000
Class E Variable (2) $ 25,047,000
Class F Variable (2) $ 18,786,000
Class G Variable (2) $ 25,047,000
Class H Variable (2) $ 21,916,000
Class J Variable (2) $ 18,786,000
Class K Variable (2) $ 25,047,000
Class L Variable (1) $ 9,393,000
Class M Variable (1) $ 9,393,000
Class N Variable (1) $ 9,392,000
Class O Variable (1) $ 6,262,000
Class P Variable (1) $ 3,131,000
Class Q Variable (1) $ 3,131,000
Class S Variable (1) $ 40,702,471
Class X-1 Variable (3) (3)
Class X-2 Variable (4) (4)
_________________
(1) The respective Pass-Through Rates for the Class A-M, Class AM-A,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates will, in the case of each of those Classes, be a rate
per annum equal to the lesser of a fixed rate per annum (equal to
6.084%, 6.087%, 4.664%, 4.664%, 4.664%, 4.664%, 4.664%, 4.664% and
4.664%, respectively) and a variable rate, all as calculated in
accordance with the definition of "Pass-Through Rate".
(2) The respective Pass-Through Rates for the Class X-1, Class X-2,
Class A-J, Class AJ-A, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J and Class K Certificates will, in the case
of each of those Classes, be a variable rate per annum calculated in
accordance with the definition of "Pass-Through Rate".
(3) The Class X-1 Certificates will not have a Class Principal Balance
and will not entitle their Holders to receive distributions of
principal. The Class X-1 Certificates will have a Class Notional
Amount which will be equal to the aggregate of the Component
Notional Amounts of the REMIC III Components of such Class from time
to time. As more specifically provided herein, interest in respect
of such Class of Certificates will consist of the aggregate amount
of interest accrued on the respective Component Notional Amounts of
such Class' REMIC III Components from time to time.
(4) The Class X-2 Certificates will not have a Class Principal Balance
and will not entitle their Holders to receive distributions of
principal. The Class X-2 Certificates will have a Class Notional
Amount which will be equal to the aggregate of the Component
Notional Amounts of the REMIC III Components of such Class from time
to time. As more specifically provided herein, interest in respect
of such Class of Certificates will consist of the aggregate
-3-
amount of interest accrued on the respective Component Notional
Amounts of such Class' REMIC III Components from time to time.
Designations of the REMIC III Components
The REMIC III Components of the Class X-1 Certificates are hereby
irrevocably assigned the alphanumeric designation under the column heading
"REMIC III Component of Class X-1 Certificates" in the table that appears under
"Corresponding REMIC II Regular Interests". The REMIC III Components of the
Class X-2 Certificates are hereby irrevocably assigned the alphanumeric
designation set forth under the column heading "REMIC III Component of Class X-2
Certificates" in the table that appears under "Corresponding REMIC II Regular
Interests".
Corresponding REMIC II Regular Interests
The following table irrevocably sets forth, with respect to each
REMIC II Regular Interest, the Class of Certificates and the REMIC III Component
of the Class X-1 Certificates and REMIC III Component of the Class X-2
Certificates for which such REMIC II Regular Interest constitutes a
Corresponding REMIC II Regular Interest:
REMIC III REMIC III Class X-2 Termination Date for REMIC
REMIC II Class of Component of Class Component of Class III Component of Class
Regular Interest Certificates X-1 Certificates X-2 Certificates X-2 Certificates
---------------- ------------ ------------------ ------------------ ------------------------------------
X-0-0 X-0 X0-X-0-0 Not Applicable Not Applicable
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-XX-0 X-XX X0-X-XX-0 X0-X-XX-0 December 0000
X-XX-0 X-XX X0-X-XX-0 X0-X-XX-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 2015
A-1A-1 A-1A X1-A-1A-1 Not Applicable Not Applicable
X-0X-0 X-0X X0-X-0X-0 X0-X-0X-0 Xxxxxxxx 0000
X-0X-0 X-0X X0-X-0X-0 X0-X-0X-0 December 2009
X-0X-0 X-0X X0-X-0X-0 X0-X-0X-0 Xxxxxxxx 0000
X-0X-0 X-0X X0-X-0X-0 X0-X-0X-0 December 2011
X-0X-0 X-0X X0-X-0X-0 X0-X-0X-0 Xxxxxxxx 2012
X-0X-0 X-0X X0-X-0X-0 X0-X-0X-0 Xxxxxxxx 0000
X-0X-0 X-0X X0-X-0X-0 X0-X-0X-0 December 2014
A-1A-9 A-1A X1-A-1A-9 X2-A-1A-9 December 2015
A-M A-M X1-A-M X2-A-M December 2015
AM-A AM-A X1-AM- X2-AM-A December 2015
X-X X-X X0-X-X X0-X-X Xxxxxxxx 0000
XX-X XX-X X0-XX-X X2-AJ-A December 0000
X-0 X X0-X-0 X0-X-0 December 0000
X-0 X X0-X-0 X0-X-0 December 2015
C-1 C X1-C-1 X2-C-1 December 2013
C-2 C X1-C-2 X2-C-2 December 2014
-4-
REMIC III REMIC III Class X-2 Termination Date for REMIC
REMIC II Class of Component of Class Component of Class III Component of Class
Regular Interest Certificates X-1 Certificates X-2 Certificates X-2 Certificates
---------------- ------------ ------------------ ------------------ ------------------------------------
X-0 X X0-X-0 X0-X-0 Xxxxxxxx 0000
X-0 D X1-D-2 X2-D-2 December 0000
X X X0-X X0-X December 2012
F-1 F X1-F-1 X2-F-1 December 2011
F-2 F X1-F-2 X2-F-2 December 2012
G G X1-G X2-G December 2011
H-1 H X1-H-1 X2-H-1 December 2010
H-2 H X1-H-2 X2-H-2 December 2011
J J X1-J X2-J December 2010
K-1 K X1-K-1 X2-K-1 December 2009
K-2 K X1-K-2 X2-K-2 December 2010
L L X1-L X2-L December 2009
M M X1-M X1-M December 0000
X X X0-X X0-X Xxxxxxxx 0000
X X X0-X Not Applicable Not Applicable
P P X1-P Not Applicable Not Applicable
Q Q X1-Q Not Applicable Not Applicable
S S X1-S Not Applicable Not Applicable
For federal income tax purposes, each Class of the REMIC III Regular
Interests will be designated as a separate "regular interest" in REMIC III. The
Latest Possible Maturity Date for each Class of REMIC III Regular Interests is
the Rated Final Distribution Date.
The Initial Pool Balance will be $2,502,224,530, and the initial
aggregate Uncertificated Principal Balance of the REMIC I Regular Interests, the
initial aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests and the initial aggregate Class Principal Balance of the respective
Classes of REMIC III Regular Interests (other than the Interest Only
Certificates) will, in each case, be $2,502,224,530.
SPLIT LOAN STRUCTURES
As described below, there exist one or more Pooled Mortgage Loans
that are part of split loan structures comprising such Pooled Mortgage Loan and
one or more other loans that, together with the respective Pooled Mortgage Loan,
are secured by the same Mortgage encumbering the related Mortgaged Properties,
which other loans are, in each case, pari passu in right of payment to the
related Pooled Mortgage Loan or subordinate in right of payment to the related
Pooled Mortgage Loan.
The DRA/Colonial Office Portfolio Pooled Mortgage Loan is part of a
split loan structure comprising the DRA/Colonial Office Portfolio Pooled
Mortgage Loan and the DRA/Colonial Office Portfolio Non-Pooled Pari Passu
Companion Loans. The relative rights of the holder of the DRA/Colonial Office
Portfolio Pooled Mortgage Loan and the holder of the DRA/Colonial Office
Portfolio Non-Pooled Pari Passu Companion Loans are set forth in the MLMT
2007-C1 Pooling and Servicing Agreement and/or the DRA/Colonial Office Portfolio
Intercreditor Agreement, which provide that the entire DRA/Colonial Office
Portfolio Loan Group is to be serviced and administered in accordance with the
MLMT 2007-C1 Pooling and Servicing Agreement.
The RRI Hotel Portfolio Pooled Mortgage Loan is part of a split loan
structure comprising the RRI Hotel Portfolio Pooled Mortgage Loan and the RRI
Hotel Portfolio Non-Pooled Pari Passu Companion Loans. The relative
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rights of the holder of the RRI Hotel Portfolio Pooled Mortgage Loan and the
holder of the RRI Hotel Portfolio Non-Pooled Pari Passu Companion Loans are set
forth in the RRI Hotel Portfolio Intercreditor Agreement, which provides that
the entire RRI Hotel Portfolio Loan Group is to be serviced and administered in
accordance with the BSCMSI 2007-PWR17 Pooling and Servicing Agreement.
The GGP Portfolio Pooled Mortgage Loan is part of a split loan
structure comprising the GGP Portfolio Pooled Mortgage Loan and the GGP
Portfolio Non-Pooled Subordinate Loan. The relative rights of the holder of the
GGP Portfolio Pooled Mortgage Loan and the holder of the GGP Portfolio
Non-Pooled Subordinate Loan are set forth in the GGP Portfolio Intercreditor
Agreement, which provides that the GGP Portfolio Loan Group is to be serviced
and administered in accordance with this Agreement, by the Trustee, the
Certificate Administrator, the applicable Master Servicer and the applicable
Special Servicer.
The Southlake Mall Pooled Mortgage Loan is part of a split loan
structure comprising the Southlake Mall Pooled Mortgage Loan and the Southlake
Mall Non-Pooled Pari Passu Companion Loan. The relative rights of the holder of
the Southlake Mall Pooled Mortgage Loan and the holder of the holder of the
Southlake Mall Non-Pooled Pari Passu Companion Loan are set forth in the
Southlake Mall Intercreditor Agreement, which provides that the Southlake Mall
Loan Group is to be serviced and administered in accordance with this Agreement,
by the Trustee, the Certificate Administrator, the applicable Master Servicer
and the applicable Special Servicer.
The Aviata Apartments Pooled Mortgage Loan is part of a split loan
structure comprising the Aviata Apartments Pooled Mortgage Loan and the Aviata
Apartments Non-Pooled Subordinate Loan. The relative rights of the holder of the
Aviata Apartments Pooled Mortgage Loan and the holder of the Aviata Apartments
Non-Pooled Subordinate Loan are set forth in the Aviata Apartments Intercreditor
Agreement, which provides that the Aviata Apartments Loan Group is to be
serviced and administered in accordance with this Agreement, by the Trustee, the
Certificate Administrator, the applicable Master Servicer and the applicable
Special Servicer.
The HRC Portfolio 3 Pooled Mortgage Loan is part of a split loan
structure comprising the HRC Portfolio 3 Pooled Mortgage Loan and the HRC
Portfolio 3 Non-Pooled Subordinate Loan. The relative rights of the holder of
the HRC Portfolio 3 Pooled Mortgage Loan and the holder of the HRC Portfolio 3
Non-Pooled Subordinate Loan are set forth in the HRC Portfolio 3 Intercreditor
Agreement, which provides that the HRC Portfolio 3 Loan Group is to be serviced
and administered in accordance with this Agreement, by the Trustee, the
Certificate Administrator, the applicable Master Servicer and the applicable
Special Servicer.
The HRC Portfolio 1 Pooled Mortgage Loan is part of a split loan
structure comprising the HRC Portfolio 1 Pooled Mortgage Loan and the HRC
Portfolio 1 Non-Pooled Subordinate Loan. The relative rights of the holder of
the HRC Portfolio 1 Pooled Mortgage Loan and the holder of the HRC Portfolio 1
Non-Pooled Subordinate Loan are set forth in the HRC Portfolio 1 Intercreditor
Agreement, which provides that the HRC Portfolio 1 Loan Group is to be serviced
and administered in accordance with this Agreement, by the Trustee, the
Certificate Administrator, the applicable Master Servicer and the applicable
Special Servicer.
The HRC Portfolio 2 Pooled Mortgage Loan is part of a split loan
structure comprising the HRC Portfolio 2 Pooled Mortgage Loan and the HRC
Portfolio 2 Non-Pooled Subordinate Loan. The relative rights of the holder of
the HRC Portfolio 2 Pooled Mortgage Loan and the holder of the HRC Portfolio 2
Non-Pooled Subordinate Loan are set forth in the HRC Portfolio 2 Intercreditor
Agreement, which provides that the HRC Portfolio 2 Loan Group is to be serviced
and administered in accordance with this Agreement, by the Trustee, the
Certificate Administrator, the applicable Master Servicer and the applicable
Special Servicer.
The Circuit City San Xxxxxx Pooled Mortgage Loan is part of a split
loan structure comprising the Circuit City San Xxxxxx Pooled Mortgage Loan and
the Circuit City San Xxxxxx Non-Pooled Subordinate Loan. The relative rights of
the holder of the Circuit City San Xxxxxx Pooled Mortgage Loan and the holder of
the Circuit City San Xxxxxx Non-Pooled Subordinate Loan are set forth in the
Circuit City San Xxxxxx Intercreditor Agreement, which provides that
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the Circuit City San Xxxxxx Loan Group is to be serviced and administered in
accordance with this Agreement, by the Trustee, the Certificate Administrator,
the applicable Master Servicer and the applicable Special Servicer.
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, each Master Servicer, each Special Servicer, the Certificate
Administrator, the Tax Administrator and the Trustee hereby agree, in each case,
as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01, subject to modification in accordance with Section 1.04.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"8119-8133 Xxxxxx Street Pooled Mortgage Loan": As defined in
Section 3.19(f).
"8119-8133 Xxxxxx Street Additional Interest": As defined in Section
3.19(f).
"Accrued Certificate Interest": The interest accrued from time to
time with respect to any Class of REMIC III Regular Interests, the amount of
which interest shall equal: (a) in the case of any Class of Principal Balance
REMIC III Regular Interests for any Interest Accrual Period, one-twelfth of the
product of (i) the Pass-Through Rate applicable to such Class of REMIC III
Regular Interests for such Interest Accrual Period, multiplied by (ii) the Class
Principal Balance of such Class of REMIC III Regular Interests outstanding
immediately prior to the related Distribution Date; and (b) in the case of
either Class of Interest Only Certificates for any Interest Accrual Period, the
aggregate amount of Accrued Component Interest for all of such Class' REMIC III
Components for such Interest Accrual Period.
"Accrued Component Interest": The interest accrued from time to time
with respect to any REMIC III Component of either Class of Interest Only
Certificates, the amount of which interest shall equal, for any Interest Accrual
Period, one-twelfth of the product of (i) either (A) in the case of a REMIC III
Component of the Class X-1 Certificates, the Class X-1 Strip Rate applicable to
such REMIC III Component for such Interest Accrual Period, or (B) in the case of
a REMIC III Component of the Class X-2 Certificates, the Class X-2 Strip 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.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest on
an Actual/360 Basis.
"Additional Collateral": Any non-real property collateral (including
any Letter of Credit and Reserve Funds) pledged and/or delivered by or on behalf
of the related Borrower and held by the related Mortgagee to secure payment on
any Mortgage Loan.
"Additional Form 10-D Disclosure": As defined in Section 11.06.
"Additional Form 10-K Disclosure": As defined in Section 11.07.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
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"Additional Servicer": Each Affiliate of either Master Servicer,
either Primary Servicer, any Pooled Mortgage Loan Seller, the Depositor or any
of the Underwriters that Services any of the Pooled Mortgage Loans and each
Person, other than a Special Servicer, who is not an Affiliate of either Master
Servicer, either Primary Servicer, any Pooled Mortgage Loan Seller, the
Depositor or any of the Underwriters and who Services 10% or more of the Pooled
Mortgage Loans (based on their Stated Principal Balance). For clarification
purposes, the Certificate Administrator is an Additional Servicer and the
Trustee is not an Additional Servicer. For further clarification purposes, the
Special Servicer is not an Additional Servicer, it being acknowledged that the
Special Servicer constitutes a Reporting Servicer regardless of the number or
percentage of Pooled Mortgage Loans serviced on any particular date.
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Holders of the
Certificates (other than the Class R and Class V Certificates) receiving less
than the full amount of principal and/or Distributable Certificate Interest to
which they are entitled on any Distribution Date.
"Additional Yield Amount": As defined in Section 4.01(b).
"Administered REO Property": Any REO Property other than any REO
Property related to a Non-Trust-Serviced Pooled Mortgage Loan.
"Administrative Fee Rate": With respect to each Pooled Mortgage Loan
(or any successor REO Pooled Mortgage Loan with respect thereto), a rate per
annum equal to the sum of (i) the Servicer Report Administrator Fee Rate; (ii)
the Trustee Fee Rate, (iii) the Certificate Administrator Fee Rate, (iv) the
related Master Servicing Fee Rate and (v) if (and only if) such Pooled Mortgage
Loan constitutes a Non-Trust-Serviced Pooled Mortgage Loan, the rate per annum
equal to the rate per annum at which comparable administrative fees payable
under the applicable Non-Trust Servicing Agreement accrue (which rate, if both
such rate accrues on a 30/360 Basis and interest on such Non-Trust-Serviced
Pooled Mortgage Loan accrues on an Actual/360 Basis, shall be adjusted (in
accordance with the formula appearing on Exhibit S) to an equivalent rate
calculated on an Actual/360 Basis from month to month for purposes of this
definition).
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": The interest accrued on any Advance (other than
any Unliquidated Advance) at the Reimbursement Rate, which is payable to the
party hereto that made that Advance, all in accordance with Section 3.11(g) or
Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status of any Grantor Trust Pool as a Grantor Trust; or (ii) the imposition of a
tax upon any Grantor Trust Pool or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto) and, solely
with respect to matters affecting any Mortgage Loan Group that includes one or
more Serviced Non-Pooled Pari Passu Companion Loans, with respect to such
Mortgage Loan Group and any related class of Non-Pooled Pari Passu Companion
Loan Securities and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such class of Non-Pooled Pari Passu Companion Loan
Securities by such Rating Agency (or, in each case, the placing of such class on
"negative credit watch" status in contemplation of any such action with respect
thereto).
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"Adverse REMIC Event": Either: (i) any impairment of the status of
any REMIC Pool as a REMIC; or (ii) except as permitted by Section 3.17(a), the
imposition of a tax upon any 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 contributions under Section 860G(d) of the Code and the
tax on income from foreclosure property under Section 860G(c) of the Code).
"Affected Loan(s)": As defined in Section 2.03(b).
"Affiliate": 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": This Pooling and Servicing Agreement, as it may be
amended, modified, supplemented or restated following the Closing Date.
"Anticipated Repayment Date": With respect to any ARD Mortgage Loan,
the date specified in the related Mortgage Note, as of which Post-ARD Additional
Interest shall begin to accrue on such Mortgage Loan, which date is prior to the
Stated Maturity Date for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (1) the laws of the State of New York; (2) to the extent
brought to the attention of the Tax Administrator (by either (i) an Opinion of
Counsel delivered to it or (ii) written notice from the appropriate taxing
authority as to the applicability of such state law), (a) the laws of the states
in which the Corporate Trust Offices of the Certificate Administrator and the
Trustee and the Primary Servicing Offices of the Master Servicers and the
Special Servicers are located and (b) the laws of the states in which any
Mortgage Loan Documents are held and/or any REO Properties are located; and (3)
such other state or local law as to which the Tax Administrator has actual
knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with USPAP (or, in the case of a
Pooled Mortgage Loan or an REO Pooled Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $2,000,000 or less, at the
applicable Special Servicer's option, either a limited appraisal and a summary
report or an internal valuation prepared by such Special Servicer) that (i)
indicates the "market value" of the subject property (within the meaning of 12
C.F.R. ss. 225.62(g)) and (ii) is conducted by a Qualified Appraiser (except
that, in the case of a Pooled Mortgage Loan or an REO Pooled Mortgage Loan with
a Stated Principal Balance as of the date of such appraisal of $2,000,000 or
less, the appraiser may be an employee of the applicable Special Servicer, which
employee need not be a Qualified Appraiser but shall have experience in
commercial and/or multifamily properties, as the case may be, and possess
sufficient knowledge to value such a property).
"Appraisal Reduction Amount": With respect to any Serviced Mortgage
Loan that is a Required Appraisal Loan, an amount (calculated initially as of
the Determination Date immediately following the later of the date on which the
subject Pooled Mortgage Loan became a Required Appraisal Loan and the date on
which the applicable Appraisal was obtained) 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 applicable Master Servicer or the Trustee,
all unpaid interest on such Required Appraisal Loan through the most
recent Due Date prior to the date of calculation (exclusive of any portion
thereof that represents Post-ARD Additional Interest, Default Interest
and/or 0000-0000 Xxxxxx Xxxxxx Additional Interest), (iii) all accrued and
unpaid Special Servicing Fees in respect of such Required Appraisal Loan,
(iv) all related unreimbursed Advances (together with Unliquidated
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Advances) made by or on behalf of (plus all accrued and unpaid interest on
such Advances (other than Unliquidated Advances)) payable to) the
applicable Master Servicer, the applicable Special Servicer and/or the
Trustee with respect to such Required Appraisal Loan, (v) any other
outstanding Additional Trust Fund Expenses with respect to 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 applicable Master Servicer or
the Special Servicer for such items); over
(b) an amount equal to the sum of: (a) the excess, if any, of (i)
90% of the Appraised Value of the related Mortgaged Property (or REO
Property) as determined by the most recent Appraisal or any letter update
of such Appraisal, 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 any
Escrow Payments and/or Reserve Funds held by the applicable Master
Servicer or the applicable Special Servicer with respect to such Required
Appraisal Loan, the related Mortgaged Property or any related REO Property
that (i) are not being held in respect of 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 twelve-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 applied towards the
reduction of the principal balance of such Required Appraisal Loan.
Notwithstanding the foregoing, if (i) any Mortgage Loan becomes a
Required Appraisal Loan, (ii) either (A) no Appraisal or update thereof has been
obtained or conducted, as applicable, in accordance with Section 3.19(a), with
respect to the related Mortgaged Property or REO Property, as the case may be,
during the 12-month period prior to the date such Mortgage Loan became a
Required Appraisal Loan or (B) there shall have occurred since the date of the
most recent Appraisal or update thereof a material change in the circumstances
surrounding the related Mortgaged Property or REO Property, as the case may be,
that would, in the applicable Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property or REO Property, as the case
may be, and (iii) no new Appraisal is obtained or conducted, as applicable, in
accordance with Section 3.19(a), within 60 days after such Mortgage Loan became
a Required Appraisal Loan, then (x) until such new Appraisal is obtained or
conducted, as applicable, in accordance with Section 3.19(a), the Appraisal
Reduction Amount shall equal 25% of the Stated Principal Balance of such
Required Appraisal Loan, and (y) upon receipt or performance, as applicable, in
accordance with Section 3.19(a), of such Appraisal or update thereof by the
applicable Special Servicer, the Appraisal Reduction Amount for such Required
Appraisal Loan shall be recalculated in accordance with the preceding sentence
of this definition.
In connection with the foregoing, each Cross-Collateralized Mortgage
Loan that is part of a single Cross-Collateralized Group shall be treated
separately (in each case as a single Mortgage Loan without regard to the
cross-collateralization and cross-default provisions) for purposes of
calculating an Appraisal Reduction Amount.
Notwithstanding the foregoing, in the case of the Southlake Mall
Loan Group, any Appraisal Reduction Amounts will be calculated with respect to
the entirety of such Serviced Mortgage Loan Group as if it were a single
"Serviced Pooled Mortgage Loan" and allocated to the Southlake Mall Pooled
Mortgage Loan and the Southlake Mall Non-Pooled Mortgage Loan on a pro rata and
pari passu basis in accordance with the respective outstanding principal
balances of such Southlake Mall Pooled Mortgage Loan and the Southlake Mall
Non-Pooled Mortgage Loan.
Also notwithstanding the foregoing, as of any date of determination,
in the case of the GGP Portfolio Loan Group, the Aviata Apartments Loan Group,
the HRC Portfolio 3 Loan Group, the HRC Portfolio 1 Loan Group, the HRC
Portfolio 2 Loan Group and the Circuit City San Xxxxxx Loan Group, any Appraisal
Reduction Amounts will be calculated with respect to the entirety of such
Serviced Mortgage Loan Group as if it were a single "Serviced Pooled
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Mortgage Loan" and allocated, first, to the related Non-Pooled Subordinate Loan
up to the full principal balance thereof and then to the related Pooled Mortgage
Loan.
An Appraisal Reduction Amount with respect to any Pooled Mortgage
Loan will be reduced to zero as of the date on which all Servicing Transfer
Events have ceased to exist with respect to such Mortgage Loan and at least 90
days have passed following the occurrence of the most recent Appraisal Trigger
Event. No Appraisal Reduction Amount will exist as to any Pooled Mortgage Loan
after it has been paid in full or it (or the REO Property) has been liquidated
or otherwise disposed of.
Notwithstanding the foregoing, with respect to each
Non-Trust-Serviced Pooled Mortgage Loan, the Appraisal Reduction Amount shall be
the "appraisal reduction amount" calculated by the applicable Non-Trust Master
Servicer pursuant to the applicable Non-Trust Servicing Agreement and the
parties hereto shall be entitled to rely on such calculations as reported to
them by the applicable Non-Trust Master Servicer.
"Appraisal Trigger Event": As defined in Section 3.19(a).
"Appraised Value": With respect to each Mortgaged Property or REO
Property, the appraised value thereof based upon the most recent Appraisal
obtained or conducted, as appropriate, pursuant to this Agreement.
"ARD Mortgage Loan": A Mortgage Loan that provides for the accrual
of Post-ARD Additional Interest thereon if such Mortgage Loan is not paid in
full on or prior to its Anticipated Repayment Date.
"Asset Status Report": As defined in Section 3.24(a).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the related Borrower in connection with the origination of the
related Mortgage Loan(s), as such assignment may be amended, modified, renewed
or extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to (a) any Pooled Mortgage
Loan that is a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment beyond the Determination Date immediately following its scheduled
maturity date (as such date may be extended in connection with a bankruptcy,
insolvency or similar proceeding involving the related Borrower or by reason of
a modification, waiver or amendment granted or agreed to by the applicable
Master Servicer or the applicable Special Servicer), for that scheduled maturity
date and for each subsequent Due Date as of which such Pooled Mortgage Loan
remains outstanding and part of the Trust Fund, the scheduled monthly payment of
principal and/or interest deemed to be due with respect to such Pooled Mortgage
Loan on such Due Date equal to the amount (exclusive of Default Interest and, in
the case of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, any 0000-0000
Xxxxxx Xxxxxx Additional Interest) that would have been due in respect thereof
on such Due Date if such Pooled Mortgage Loan had been required to continue to
accrue interest in accordance with its terms, and to pay principal in accordance
with the amortization schedule (if any), in effect immediately prior to, and
without regard to the occurrence of, such maturity date; and (b) any REO Pooled
Mortgage Loan, for any Due Date as of which the related REO Property (or, in the
case of any REO Pooled Mortgage Loan that is a successor to any Pooled Mortgage
Loan in a Mortgage Loan Group, any interest in the related REO Property) remains
part of the Trust Fund, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
Monthly Payment (or, in the case of a Balloon Mortgage Loan described in clause
(b) of this definition, the Assumed Monthly Payment) that was due (or deemed
due) with respect to the related Pooled Mortgage Loan on the last Due Date prior
to its becoming an REO Pooled Mortgage Loan.
"ASTM": The American Society for Testing and Materials.
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"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 5.07 (or, in the absence of any such appointment, the Certificate
Administrator).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) all amounts on deposit in the
Distribution Account as of 11:00 a.m., New York City time, on such Distribution
Date, (ii) to the extent not included in the amount described in clause (a)(i)
of this definition, any P&I Advances and/or Compensating Interest Payments that
were made hereunder in respect of such Distribution Date, (iii) to the extent
not included in the amount described in clause (a)(i) of this definition, the
aggregate amount transferred (pursuant to Section 3.05(d)) from the Excess
Liquidation Proceeds Account to the Distribution Account in respect of such
Distribution Date, and (iv) to the extent not included in the amount described
in clause (a)(i) of this definition, if such Distribution Date occurs during the
month of March of 2008 or any year thereafter (or if the Final Distribution Date
occurs during the month of January (except in a leap year) or February of any
year, during such January or February), the aggregate of the Interest Reserve
Amounts with respect to the Interest Reserve Loans transferred from the Interest
Reserve Account to the Distribution Account during such month of March (or if
the Final Distribution Date occurs during the month of January (except in a leap
year) or February of any year, during such January or February) for distribution
on such Distribution Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period (other than, in the case of any Pooled Mortgage Loan
for which the Due Date is on a day that is after the seventh day of each month
and such day in the current month happens to be later than the end of such
related Collection Period, in which case such collected Monthly Payment shall
not be withheld until the following month as otherwise contemplated by this
clause (i)), (ii) any payments of principal (including Principal Prepayments)
and interest, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
Received by the Trust after the end of the related Collection Period, (iii) any
Prepayment Premiums, Yield Maintenance Charges, Post-ARD Additional Interest
and/or 0000-0000 Xxxxxx Xxxxxx Additional Interest, (iv) any amounts payable or
reimbursable to any Person from the Distribution Account pursuant to clauses
(iii) through (viii) of Section 3.05(b), (v) if such Distribution Date occurs
during the month of February of 2008 or any year thereafter or during the month
of January of 2009 or any year thereafter that is not a leap year, the aggregate
of the Interest Reserve Amounts with respect to the Interest Reserve Loans to be
withdrawn (pursuant to Section 3.04(c) and Section 3.05(b)(ii)) from the
Distribution Account and deposited into the Interest Reserve Account during such
month of February or such month of January, as the case may be, and held for
future distribution, and (vi) any amounts deposited in the Distribution Account
in error; provided that the Available Distribution Amount for the Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(v) of this definition.
For purposes of determining the portion of the Available
Distribution Amount that is attributable to Loan Group 1 or Loan Group 2 in
connection with any Distribution Date, if the portion of the Principal
Distribution Amount otherwise attributable to such Loan Group is increased (or
decreased) on account of one or more Pooled Mortgage Loans that are not included
in such Loan Group pursuant to the definition of "Principal Distribution
Amount", then the portion of the Available Distribution Amount that is otherwise
attributable to such Loan Group in connection with such Distribution Date shall
be likewise increased (or decreased) by the same amount and the portion of the
Available Distribution Amount that is otherwise attributable to the Loan Group
that includes such Pooled Mortgage Loan shall be decreased (or increased) by the
same amount.
"Aviata Apartments Controlling Party": The Aviata Apartments
Non-Pooled Subordinate Noteholder at any time when a PCFII Change of Control
Event does not exist with respect to the Aviata Apartments Loan Group or the
Controlling Class Representative at any time when a PCFII Change of Control
Event exists with respect to the Aviata Apartments Loan Group.
"Aviata Apartments Intercreditor Agreement": The intercreditor
agreement between the initial holders of the Aviata Apartments Pooled Mortgage
Loan and the Aviata Apartments Non-Pooled Subordinate Loan.
"Aviata Apartments Loan Group": The Aviata Apartments Pooled
Mortgage Loan and the Aviata Apartments Non-Pooled Subordinate Loan, together.
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"Aviata Apartments Mortgaged Property": The Mortgaged Property
identified on Appendix B to this prospectus supplement as Aviata Apartments.
"Aviata Apartments Non-Pooled Subordinate Loan": The loan with an
original principal balance of $500,000 that is secured by the same mortgage
instrument encumbering the Aviata Apartments Mortgaged Property as the Aviata
Apartments Pooled Mortgage Loan. The Aviata Apartments Non-Pooled Subordinate
Loan is not a "Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool
or any Grantor Trust Pool.
"Aviata Apartments Non-Pooled Subordinate Noteholder": The holder of
the promissory note evidencing the Aviata Apartments Non-Pooled Subordinate
Loan.
"Aviata Apartments Pooled Mortgage Loan": The Pooled Mortgage Loan
in the original principal amount of $27,500,000 that is secured by the Aviata
Apartments Mortgaged Property.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date (or,
in the case of a Replacement Pooled Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, the Monthly
Payment due on its Stated Maturity Date is at least 5% of the original principal
balance of such Mortgage Loan.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": As defined in Section 4.01(b).
"Base Prospectus": That certain prospectus dated November 30, 2007
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depositary or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Borrower": The obligor or obligors on a Mortgage Note.
"Breach": As defined in Section 2.03(a).
"BSCMI": Bear Xxxxxxx Commercial Mortgage, Inc., or its successor in
interest.
"BSCMI Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either an Original BSCMI Pooled Mortgage Loan or a Replacement Pooled Mortgage
Loan that was delivered under the BSCMI Pooled Mortgage Loan Purchase Agreement
in substitution for an Original BSCMI Pooled Mortgage Loan.
"BSCMI Pooled Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase and Sale Agreement dated as of December 13, 2007, between
BSCMI as seller and the Depositor as purchaser.
"BSCMSI 2007-PWR17 Pooling and Servicing Agreement" means the
Pooling and Servicing Agreement, dated as of September 1, 2007, among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as depositor, Prudential Asset
Resources, Inc., as a master servicer, Xxxxx Fargo Bank, National Association,
as a master servicer, Centerline Servicing
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Inc., as special servicer, Xxxxx Fargo Bank, National Association, as
certificate administrator and as tax administrator, and LaSalle Bank National
Association, as trustee, relating to the Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-PWR17.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York or Illinois or any of the
jurisdictions in which the respective Primary Servicing Offices of the Master
Servicers, the Primary Servicers and the Special Servicers and the Corporate
Trust Offices of the Certificate Administrator and the Trustee are located, are
authorized or obligated by law or executive order to remain closed.
"Category 1 Request": In connection with the PCFII Pooled Mortgage
Loans, a "Category 1 Request" and a "Deemed Category 1 Request" as such terms
are defined in the PGI Primary Servicing Agreement.
"Centerline Interest on Advance Reconciliation Report": The report
in the form of and containing the information provided for on Exhibit E-1
hereto. The Centerline Interest on Advance Reconciliation Report shall be in
Excel format or such other format as is reasonably acceptable to the Master
Servicers, the Certificate Administrator and the Controlling Class
Representative.
"Centerline Mortgage Loans Delinquent Report": The report in the
form of and containing the information provided for on Exhibit E-2 hereto. The
Centerline Mortgage Loans Delinquent Report shall be in Excel format or such
other format as is reasonably acceptable to the Master Servicers, the
Certificate Administrator and the Controlling Class Representative.
"Centerline Naming Convention for Electronic File Delivery": The
naming convention for electronic file delivery set forth on Exhibit X-0 xxxxxx.
"Xxxxxxxxxx X&X Advances as of Remittance Date Report": The report
in the form of and containing the information provided for on Exhibit E-3
hereto. The Centerline P&I Advances as of Remittance Date Report shall be in
Excel format or such other format as is reasonably acceptable to the Master
Servicers, the Certificate Administrator and the Controlling Class
Representative.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's 2007-PWR18 Commercial
Mortgage Pass-Through Certificates, as executed by the Certificate Administrator
and authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Administrator": WFB, in its capacity as certificate
administrator hereunder, or any successor certificate administrator appointed as
herein provided.
"Certificate Administrator Fee": With respect to each Pooled
Mortgage Loan and REO Pooled Mortgage Loan, the fee designated as such and
payable to the Certificate Administrator pursuant to Section 8.05(a). The
Certificate Administrator Fee includes the Tax Administrator Fee.
"Certificate Administrator Fee Rate": Thirty-five
hundred-thousandths of one percent (0.00035 %) per annum.
"Certificate Administrator Report": As defined in Section 4.02(a).
"Certificate Factor": With respect to any Class of Interest Only
Certificates or Principal Balance Certificates, as of any date of determination,
a fraction, expressed as a decimal carried to eight places, the numerator of
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which is the related Class Principal Balance or Class Notional Amount, as the
case may be, then outstanding, and the denominator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, outstanding as
of the Closing Date.
"Certificate Group 1 Principal Distribution Amount": As defined in
Section 4.01(a).
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that:
(i) neither a Disqualified Organization nor a Non-United States Tax Person shall
be a "Holder" of, or a "Certificateholder" with respect to, a Class R
Certificate for any purpose hereof; and (ii) solely for purposes of giving any
consent, approval, direction or waiver pursuant to this Agreement that
specifically relates to the rights, duties and/or obligations hereunder of any
of the Depositor, a Master Servicer, a Special Servicer, the Tax Administrator,
the Certificate Administrator or the Trustee in its respective capacity as such
(other than any consent, approval or waiver contemplated by Sections 3.24 and/or
3.27, 3.28, 3.29 and/or 3.30), any Certificate registered in the name of such
party or in the name of any Affiliate thereof shall be deemed not to be
outstanding, and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent, approval or waiver that specifically
relates to such party has been obtained. The Certificate Registrar shall be
entitled to request and conclusively rely upon a certificate of the Depositor, a
Master Servicer or the Special Servicer in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Certificateholders" or "Holders" shall reflect the rights of Certificate Owners
only insofar as they may indirectly exercise such rights through the Depository
and the Depository Participants (except as otherwise specified herein), it being
herein acknowledged and agreed that the parties hereto shall be required to
recognize as a "Certificateholder" or "Holder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificate Notional Amount": With respect to any Interest Only
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest, equal to the product of (a) the then
Certificate Factor for the Class of Interest Only Certificates to which such
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner": With respect to any Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount 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" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certification Indemnitee": As defined in Section 11.14.
"Certification Parties": As defined in Section 11.08.
"Certifying Person": As defined in Section 11.08.
"Certifying Servicer": As defined in Section 11.11.
"Circuit City San Xxxxxx Change of Control Event": The event that
occurs if and for so long as (a) (i) the initial unpaid principal balance of the
Circuit City San Xxxxxx Non-Pooled Subordinate Loan minus (ii) the sum (without
duplication) of (x) any payments of principal (whether as to principal
prepayments or otherwise) allocated to, and
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received on, the Circuit City San Xxxxxx Non-Pooled Subordinate Loan, (y) any
Appraisal Reduction Amount for the Circuit City San Xxxxxx Loan Group and (z)
any realized losses with respect to the Circuit City San Xxxxxx Loan Group, is
less than (b) 25% of the excess of (i) the initial Circuit City San Xxxxxx
Non-Pooled Subordinate Loan principal balance over (ii) any payments of
principal (whether as to principal prepayments or otherwise) allocated to and
received by, the Circuit City San Xxxxxx Non-Pooled Subordinate Noteholder on
the Circuit City San Xxxxxx Non-Pooled Subordinate Loan.
"Circuit City San Xxxxxx Controlling Party": The Circuit City San
Xxxxxx Non-Pooled Subordinate Noteholder at any time when a Circuit City San
Xxxxxx Change of Control Event does not exist with respect to the Circuit City
San Xxxxxx Loan Group or the Controlling Class Representative at any time when a
Circuit City San Xxxxxx Change of Control Event exists with respect to the
Circuit City San Xxxxxx Loan Group.
"Circuit City San Xxxxxx Intercreditor Agreement": The intercreditor
agreement between the initial holders of the Circuit City San Xxxxxx Pooled
Mortgage Loan and the Circuit City San Xxxxxx Non-Pooled Subordinate Loan.
"Circuit City San Xxxxxx Loan Group": The Circuit City San Xxxxxx
Pooled Mortgage Loan and the Circuit City San Xxxxxx Non-Pooled Subordinate
Loan, together.
"Circuit City San Xxxxxx Mortgaged Properties": The Mortgaged
Properties collectively identified on the Pooled Mortgage Loan Schedule as
Circuit City San Xxxxxx.
"Circuit City San Xxxxxx Non-Pooled Subordinate Loan": The loan with
an original principal balance of $1,600,000 that is secured by the same mortgage
instrument encumbering the Circuit City San Xxxxxx Mortgaged Properties as the
Circuit City San Xxxxxx Pooled Mortgage Loan. The Circuit City San Xxxxxx
Non-Pooled Subordinate Loan is not a "Pooled Mortgage Loan" or part of the Trust
Fund, any REMIC Pool or any Grantor Trust Pool.
"Circuit City San Xxxxxx Non-Pooled Subordinate Noteholder": The
holder of the promissory note evidencing the Circuit City San Xxxxxx Non-Pooled
Subordinate Loan.
"Circuit City San Xxxxxx Pooled Mortgage Loan": The Pooled Mortgage
Loan in the original principal amount of $6,400,000 that is secured by the
Circuit City San Xxxxxx Mortgaged Properties.
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric class designation and having the same payment terms.
"Class A Senior REMIC III Regular Interests": The Class A-1, Class
A-2, Class A-3, Class A-AB, Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate": 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": 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": 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": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-AB Certificate": 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" For any Distribution Date,
the principal balance set forth opposite such Distribution Date on Schedule VI
attached hereto.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" 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-M Certificate": Any one of the Certificates with a "Class
A-M" 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 AJ-A Certificate": Any one of the Certificates with a "Class
AJ-A" 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 AM-A Certificate": Any one of the Certificates with a "Class
AM-A" 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 B Certificate": Any one of the Certificates with a "Class B"
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 C Certificate": Any one of the Certificates with a "Class C"
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 D Certificate": Any one of the Certificates with a "Class D"
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 E Certificate": Any one of the Certificates with a "Class E"
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 F Certificate": Any one of the Certificates with a "Class F"
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 G Certificate": Any one of the Certificates with a "Class G"
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 H Certificate": Any of the Certificates with a "Class H"
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 J Certificate": Any one of the Certificates with a "Class J"
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 K Certificate": Any of the Certificates with a "Class K"
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 L Certificate": Any of the Certificates with a "Class L"
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 M Certificate": Any of the Certificates with a "Class M"
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 N Certificate": Any of the Certificates with a "Class N"
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 Notional Amount": The aggregate hypothetical or notional
amount on which any Class of Interest Only Certificates accrues or is deemed to
accrue interest from time to time, as calculated in accordance with Section
2.16(e).
"Class O Certificate": Any of the Certificates with a "Class O"
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 P Certificate": Any of the Certificates with a "Class P"
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 Principal Balance": The aggregate principal balance of any
Class of Principal Balance REMIC III Regular Interests outstanding as of any
date of determination. As of the Closing Date, the Class Principal Balance of
each Class of Principal Balance REMIC III Regular Interests shall equal the
initial Class Principal Balance thereof. On each Distribution Date, the Class
Principal Balance of each Class of Principal Balance REMIC III Regular Interests
shall be (i) reduced by the amount of any distributions of principal made
thereon on such Distribution Date pursuant to Section 4.01, and (ii) further
reduced by the amount of any Realized Losses and Additional Trust Fund Expenses
deemed allocated thereto on such Distribution Date pursuant to Section 4.04(a);
provided, however, that if the Principal Distribution Amount for such
Distribution Date includes any amount described in clause (I)(C) of the
definition of "Principal Distribution Amount" (in respect of recoveries during
the Collection Period related to such Distribution Date of amounts determined to
constitute Nonrecoverable Advances during a Collection Period related to a prior
Distribution Date), then the Class Principal Balances of the respective Classes
of Principal Balance REMIC III Regular Interests shall hereby be
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increased (in the aggregate) immediately prior to such Distribution Date by the
lesser of the amount of Realized Losses previously allocated thereto and such
amount described in such clause (I)(C) (and, as among the respective Classes of
Principal Balance REMIC III Regular Interests, such increase shall be allocated,
first, to the Class A Senior REMIC III Regular Interests (pro rata according to
the amounts of Realized Losses previously allocated to the respective Classes of
Class A Senior REMIC III Regular Interests), second, to the Class A-M
Certificates and the Class AM-A Certificates (pro rata according to the amounts
of Realized Losses previously allocated to such respective Classes), third to
the Class A-J Certificates and the Class AJ-A Certificates (pro rata according
to the amounts of Realized Losses previously allocated to such respective
Classes), and, then to the other Classes of Principal Balance Certificates in
sequential order according to alphabetical Class designation, in each case to
the extent of the lesser of the Realized Losses previously allocated thereto and
the remaining unallocated portion of the increase).
"Class Q Certificate": Any of the Certificates with a "Class Q"
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 R Certificate": Any of the Certificates with a "Class R"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing ownership of Grantor Trust R.
"Class S Certificate": Any of the Certificates with a "Class S"
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 V Certificate": Any of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing ownership of Grantor Trust V.
"Class X-1 Certificate": Any of the Certificates with a "Class X-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 X-1 Strip Rate": As defined in Section 2.16(f).
"Class X-2 Certificate": Any of the Certificates with a "Class X-2"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class X-2 Strip Rate": As defined in Section 2.16(f).
"Class X-2 Termination Date": With respect to each REMIC III
Component of the Class X-2 Certificates, the Distribution Date that occurs in
the month set forth opposite such REMIC III Component in the Preliminary
Statement under the column entitled "Class X-2 Termination Date for REMIC III
Component of Class X-2 Certificates" in the table entitled "REMIC
III--Corresponding REMIC II Regular Interests".
"Clearstream": Clearstream Banking, societe anonyme or any
successor.
"Closing Date": December 27, 2007.
"Closing Date Deposit Amount": With respect to each Closing Date
Deposit Mortgage Loan, a cash amount to be deposited by the related Pooled
Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan Purchase
Agreement, as set forth on Schedule VII, which cash amount represents, as to
each such Pooled Mortgage Loan, the aggregate amount of interest that would have
accrued on the related Cut-off Date Principal Balance of such Closing
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Date Deposit Mortgage during the entire month of December 2007 at the related
Mortgage Rate as if such Mortgage Loan accrued interest for such month.
"Closing Date Deposit Mortgage Loan": Any Mortgage Loan set forth on
Schedule VII, for which Mortgage Loan a Monthly Payment is not due in January
2008.
"CMSA": 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 reasonably
acceptable to each Master Servicer, each Primary Servicer, the Certificate
Administrator, the Trustee, each Special Servicer and the Controlling Class
Representative.
"CMSA Advance Recovery Report": The monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally;
provided, however, that, to the extent that such other form contemplates such
additional information, such other form must be reasonably acceptable to each
Master Servicer, each Special Servicer, the Certificate Administrator and the
Trustee. The preparation of each CMSA Advance Recovery Report shall constitute a
responsibility of the applicable Master Servicer and shall not constitute a
responsibility of any other party. Notwithstanding anything in this Agreement to
the contrary, the applicable Master Servicer shall not be required to deliver a
CMSA Advance Recovery Report with respect to any Collection Period prior to the
date when a Workout-Delayed Reimbursement Amount or a Nonrecoverable Advance
exists with respect to any Pooled Mortgage Loan for which such Master Servicer
is the applicable Master Servicer.
"CMSA Bond Level File": The monthly data file substantially in the
form of, and containing the information called for in, the downloadable form of
the "Bond Level File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally; provided, however,
that, to the extent that such other form contemplates such additional
information, such other form must be reasonably acceptable to the Certificate
Administrator.
"CMSA Collateral Summary File": The monthly data file substantially
in the form of, and containing the information called for in, the downloadable
form of the "Collateral Summary File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally ;
provided, however, that, to the extent that such other form contemplates such
additional information, such other form must be reasonably acceptable to the
Certificate Administrator and the Trustee.
"CMSA Comparative Financial Status Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally; provided, however, that, to
the extent that such other form contemplates such additional information, such
other form must be reasonably
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acceptable to each Master Servicer and each Special Servicer. Each CMSA
Comparative Financial Status Report shall be based on (1) the most recent rent
roll and (2) to the extent provided to the applicable Master Servicer or the
applicable Special Servicer, (i) in connection with a CMSA Comparative Financial
Status Report relating to quarterly financial information, trailing 12 months of
financial information (normalized), if trailing 12 months of financial
information was provided to the applicable Master Servicer or the applicable
Special Servicer (as the case may be), or financial information based on 9
months of operating statements or year-to-date financial information, if
trailing 12 months of financial information was not provided to the applicable
Master Servicer or the applicable Special Servicer (as the case may be) and 9
months of operating statements or year-to-date financial information was
provided to the applicable Master Servicer or the applicable Special Servicer
(as the case may be) or (ii) in connection with a CMSA Comparative Financial
Status Report relating to annual financial information, annual operating
statements (if provided to the applicable Master Servicer or the applicable
Special Servicer (as the case may be)), normalized. To the extent the
information described above has been provided to the applicable Master Servicer
or the applicable Special Servicer, each CMSA Comparative Financial Status
Report shall present (among other things called for by the form of CMSA
Comparative Financial Status Report) the occupancy rate, debt service coverage
ratio, net operating income and net cash flow for each Mortgage Loan or
Mortgaged Property covered thereby.
"CMSA Delinquent Loan Status Report": A monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Delinquent Loan Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage-backed securities transactions
generally; provided, however, that, to the extent that such other form
contemplates such additional information, such other form must be reasonably
acceptable to each Master Servicer and each Special Servicer.
"CMSA Financial File": A monthly data file substantially in the form
of, and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally; provided, however,
that, to the extent that such other form contemplates such additional
information, such other form must be reasonably acceptable to each Master
Servicer.
"CMSA Historical Loan Modification & Corrected Mortgage Loan
Report": A monthly report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally; provided, however,
that, to the extent that such other form contemplates such additional
information, such other form must be reasonably acceptable to each Master
Servicer and each Special Servicer.
"CMSA Investor Reporting Package": Collectively:
(a) the following electronic data files: (i) CMSA Loan Setup
File, (ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv)
CMSA Bond Level File, (v) CMSA Financial File, (vi) CMSA Collateral
Summary File and (vii) CMSA Special Servicer Loan File; and
(b) the following supplemental reports: (i) CMSA Delinquent
Loan Status Report, (ii) CMSA Historical Loan Modification & Corrected
Mortgage Loan Report, (iii) CMSA REO Status Report, (iv) CMSA Operating
Statement Analysis Report, (v) CMSA Comparative Financial Status Report,
(vi) CMSA Servicer Watch List, (vii) CMSA NOI Adjustment Worksheet, (viii)
CMSA Loan Level Reserve/LOC Report, (ix) CMSA Reconciliation of Funds
Report, (x) CMSA Advance Recovery Report and (xi) solely with respect to
the Serviced Mortgage Loan Groups, CMSA Total Loan Report.
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Notwithstanding anything in this Agreement to the contrary, in the
event any of the electronic files listed in clause (a) of this definition or any
of the supplemental reports listed in clause (b) of this definition are amended
or changed in any material respect by the CMSA and placed on the CMSA Website or
otherwise recommended by the CMSA for commercial mortgage-backed securities
transactions generally, so long as such electronic files and such supplemental
reports are reasonably acceptable (as applicable) to each Master Servicer and
each Special Servicer, then same shall be used with respect to the Collection
Period that commences at any time following the date that is not later than
three (3) months following adoption of the form thereof by the CMSA.
"CMSA Loan Level Reserve/LOC Report": A monthly report substantially
in the form of, and containing the information called for in, the "Loan Level
Reserve Report" as adopted by the CMSA and made available at the CMSA Website.
"CMSA Loan Periodic Update File": The monthly data file
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally; provided, however, that, to the extent that such other
form contemplates such additional information, such other form must be
reasonably acceptable to each Master Servicer, each Special Servicer and the
Certificate Administrator.
"CMSA Loan Setup File": The data file 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 recommended by the CMSA for commercial
mortgage-backed securities transactions generally; provided, however, that, to
the extent that such other form contemplates such additional information, such
other form must be reasonably acceptable to each Master Servicer, each Special
Servicer, the Certificate Administrator and the Trustee. The CMSA Loan Setup
File shall indicate (based solely on the Pooled Mortgage Loan Schedule) whether
each related Pooled Mortgage Loan presented therein is contained in Loan Group 1
or Loan Group 2.
"CMSA NOI Adjustment Worksheet": An annual report substantially in
the form of, and containing the information called for in, the downloadable form
of the "NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally;
provided, however, that, to the extent that such other form contemplates such
additional information, such other form must be reasonably acceptable to each
Master Servicer and each Special Servicer and in any event, shall present the
computations made in accordance with the methodology described in such form to
"normalize" the full year net operating income and debt service coverage numbers
used in the other reports required by this Agreement.
"CMSA Property File": A data file substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally; provided, however, that, to
the extent that such other form contemplates such additional information, such
other form must be reasonably acceptable to each Master Servicer and each
Special Servicer.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally; provided, however, that, to the extent that such other
form contemplates such additional information, such other form must be
reasonably acceptable to each Master Servicer.
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"CMSA Reconciliation of Funds Report": A monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Reconciliation of Funds Report" available as of the
Closing Date on the CMSA Website or in such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally; provided, however, that, to the extent that such other
form contemplates such additional information, such other form must be
reasonably acceptable to the Certificate Administrator.
"CMSA REO Status Report": A monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"REO Status Report" available as of the Closing Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally; provided, however,
that, to the extent that such other form contemplates such additional
information, such other form must be reasonably acceptable to each Special
Servicer.
"CMSA Servicer Watch List": A monthly report 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 adopted by the CMSA for
commercial mortgage-backed securities transactions; provided, however, that, to
the extent that such other form contemplates such additional information, such
other form must be reasonably acceptable to each Master Servicer.
"CMSA Special Servicer Loan File": A data file 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 in such other form for the presentation of such information and
containing such additional information as may from time to time be adopted by
the CMSA for commercial mortgage-backed securities transactions; provided,
however, that, to the extent that such other form contemplates such additional
information, such other form must be reasonably acceptable to each Special
Servicer.
"CMSA Total Loan Report": A monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Total Loan Report" available as of the Closing Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be adopted by the CMSA for
commercial mortgage-backed securities transactions; provided, however, that, to
the extent that such other form contemplates such additional information, such
other form must be reasonably acceptable to each applicable Master Servicer.
"CMSA Website": 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": The Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder, including proposed regulations to the extent
that, by reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collection Account": The segregated account or accounts created and
maintained by each Master Servicer, pursuant to Section 3.04(a), in trust for
the Certificateholders, which shall be entitled "[name of subject Master
Servicer], as a Master Servicer, on behalf of LaSalle Bank National Association
[or name of any successor Trustee], as Trustee, in trust for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2007-PWR18, Collection Account".
"Collection Period": With respect to any Distribution Date, the
period commencing on the day immediately following the Determination Date in the
calendar month preceding the month in which such Distribution
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Date occurs (or, in the case of the initial Distribution Date, commencing as of
the Cut-off Date) and ending on and including the Determination Date in the
calendar month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission or any
successor thereto.
"Companion Note Custodial Account": As defined in Section 3.04(e).
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by a Master Servicer or the Certificate Administrator
from its own funds pursuant to Section 3.19(c) to cover Prepayment Interest
Shortfalls incurred during the related Collection Period.
"Component Notional Amount": The notional amount on which any REMIC
III Component of any Class of Interest Only Certificates accrues interest,
which, as of any date of determination, is equal to the then current
Uncertificated Principal Balance of such REMIC III Component's Corresponding
REMIC II Regular Interest.
"Condemnation Proceeds": All cash amounts actually Received by the
Trust or on behalf of the Trustee, a Master Servicer or a Special Servicer
(including with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property, any such proceeds remitted to the applicable Master
Servicer by the applicable Non-Trust Master Servicer or the applicable Non-Trust
Special Servicer pursuant to the related Mortgage Loan Group Intercreditor
Agreement and/or the applicable Non-Trust Servicing Agreement) 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, exclusive of any
portion thereof applied to the restoration of the related Mortgaged Property or
REO Property (or placed in a reserve account for that purpose) or required to be
released to the related Borrower or any other third-party in accordance with
applicable law and/or the terms and conditions of the related Mortgage Loan
Documents or any other applicable document.
"Controlling Class": As of any date of determination, the
outstanding Class of Principal Balance Certificates that (a) is the most
subordinate (based on the payment priorities set forth in Section 4.01(a))
outstanding Class of Principal Balance Certificates and (b) has a Class
Principal Balance which is not less than 25% of the initial 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 not
less than 25% of its initial Class Principal Balance, then the Controlling Class
shall be the then most subordinate (based on the payment priorities set forth in
Section 4.01(a)) outstanding Class of Principal Balance Certificates that has a
Class Principal Balance greater than zero; and provided, further, that, for
purposes of this definition, (i) the Class A-1, Class X-0, Xxxxx X-0, Class
A-AB, Class A-4 and Class A-1A Certificates shall be deemed to constitute a
single Class of Certificates, (ii) the Class A-M and Class AM-A Certificates
shall be deemed to constitute a single Class of Certificates and (iii) the Class
A-J and Class AJ-A Certificates shall be deemed to constitute a single Class of
Certificates.
"Controlling Class Certificateholder": Any Holder of Certificates of
the Controlling Class.
"Controlling Class Representative": As defined in Section 3.23(a).
The initial Controlling Class Representative shall be Centerline REIT Inc.
"Corporate Trust Office: The corporate trust office of the
Certificate Administrator or the asset-backed securities trust services office
of the Trustee, as the case may be, at which at any particular time its duties,
with respect to this Agreement shall be administered, which office is as of the
Closing Date located: (i) in the case of the Certificate Administrator, for
Certificate transfer purposes, at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; Attn: Corporate Trust Services-Bear
Xxxxxxx Commercial Mortgage Securities Inc., 2007-PWR18, and for all other
purposes, at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services, Bear Xxxxxxx Commercial Mortgage Securities Inc.,
2007-PWR18; and (ii) in the case of the Trustee, at 000 Xxxxx
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XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services-Bear Xxxxxxx Commercial Mortgage Securities Inc., 2007-PWR18.
"Corrected Mortgage Loan": 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 Mortgage Loan or the related
Mortgaged Property becoming an REO Property).
"Corrected Pooled Mortgage Loan": Any Serviced Pooled Mortgage Loan
that is a Corrected Mortgage Loan. Notwithstanding anything to the contrary
contained herein, in no event shall a Non-Trust-Serviced Pooled Mortgage Loan
constitute a Corrected Pooled Mortgage Loan under this Agreement.
"Corresponding Class of Principal Balance Certificates": With
respect to any REMIC III Component of a Class of Interest Only Certificates, the
Class of Principal Balance Certificates opposite which such REMIC III Component
is set forth in the Preliminary Statement in the table entitled "REMIC
III--Corresponding REMIC II Regular Interests".
"Corresponding REMIC II Regular Interest(s)": (a) With respect to
any Class of Principal Balance Certificates, the one or more REMIC II Regular
Interests opposite which such Class of Principal Balance Certificates is set
forth in the Preliminary Statement in the table entitled "REMIC
III--Corresponding REMIC II Regular Interests"; (b) with respect to any REMIC
III Component of the Class X-1 Certificates, the REMIC II Regular Interest
opposite which such REMIC III Component is set forth in the Preliminary
Statement in the table entitled "REMIC III--Corresponding REMIC II Regular
Interests"; and (c) with respect to any REMIC III Component of the Class X-2
Certificates, the REMIC II Regular Interest opposite which such REMIC III
Component is set forth in the Preliminary Statement in the table entitled "REMIC
III--Corresponding REMIC II Regular Interests".
"Cross-Collateralized Group": Any group of Mortgage Loans that are
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan, that is, by
its terms, cross-defaulted and cross-collateralized with any other Mortgage
Loan; provided that the Mortgage Loans that are part of any Serviced Mortgage
Loan Group shall not constitute Cross-Collateralized Mortgage Loans.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Pooled Mortgage Loan Sellers or an
Affiliate of any of them.
"Cut-off Date": With respect to each Mortgage Loan, the Due Date for
the Monthly Payment due on such Mortgage Loan in December 2007 (or, in the case
of any Mortgage Loan that has its first Due Date after December 2007, the later
of the date of origination or the date that would have been its Due Date in
December 2007 under the terms of such Mortgage Loan if a Monthly Payment were
scheduled to be due in such month).
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of its Cut-off Date,
after application of all payments of principal due on or before such date,
whether or not received.
"DBRS": DBRS, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "DBRS" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the other parties hereto, and specific ratings of DBRS, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating
-26-
category") shall, in the case of DBRS, be deemed to refer to such applicable
rating category of DBRS, without regard to any plus or minus or other comparable
rating qualification.
"Default Charges": Default Interest and/or late payment charges that
are paid or payable, as the context may require, in respect of any Mortgage Loan
or REO Mortgage Loan.
"Default Interest": With respect to any Mortgage Loan (or successor
REO Mortgage Loan), any amounts collected thereon, other than late payment
charges, Prepayment Premiums or Yield Maintenance Charges, that represent
interest (exclusive, if applicable, of Post-ARD Additional Interest and
0000-0000 Xxxxxx Xxxxxx Additional Interest) in excess of interest accrued on
the principal balance of such Mortgage Loan (or REO Mortgage Loan) at the
related Mortgage Rate, such excess interest arising out of a default under such
Mortgage Loan.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Pooled Mortgage Loan": Any Pooled Mortgage Loan as to
which there exists a Material Breach or a Material Document Defect that has not
been cured in all material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Pooled Mortgage Loan": A Defective Pooled Mortgage Loan
that is purchased or repurchased, as the case may be, from the Trust or replaced
with one or more Replacement Pooled Mortgage Loans, in either case as
contemplated by Section 2.03.
"Depositor": Bear Xxxxxxx Commercial Mortgage Securities Inc., or
its successor in interest.
"Depository": 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": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Designated MERS Mortgage": As defined in clause (iii) of the
definition of "Mortgage File".
"Designated Sub-Servicer": Any Sub-Servicer set forth on Schedule
III hereto and any successor to such Sub-Servicer under the related Designated
Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": Any Sub-Servicing Agreement
between a Designated Sub-Servicer and a Master Servicer.
"Determination Date": The seventh day of each month, or if such
seventh day is not a Business Day, the Business Day immediately following such
seventh day, commencing in January 2008.
"Directly Operate": With respect to any Administered REO Property,
the furnishing or rendering of services to the tenants thereof, the management
or operation of such REO Property, the holding of such REO Property primarily
for sale or lease, the performance of any construction work thereon or any use
of such REO Property in a trade or business conducted by the Trust other than
through an Independent Contractor; provided, however, that the Trustee (or the
applicable Special Servicer on behalf of the Trustee) shall not be considered to
Directly Operate an Administered REO Property solely because the Trustee (or the
applicable Special Servicer on behalf of the Trustee) establishes rental terms,
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chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Discount Rate": As defined in Section 4.01(b).
"Disqualified Non-United States Tax Person": With respect to any
Class R Certificate, any Non-United States Tax Person or agent thereof other
than: (1) a Non-United States Tax Person that (a) holds such Class R Certificate
and, for purposes of Treasury Regulations Section 1.860G-3(a)(3), is subject to
tax under Section 882 of the Code, (b) certifies that it understands that, for
purposes of Treasury Regulations Section 1.860E-1(c)(4)(ii), as a holder of such
Class R Certificate for United States federal income tax purposes, it may incur
tax liabilities in excess of any cash flows generated by such Class R
Certificate and intends to pay taxes associated with holding such Class R
Certificate, and (c) has furnished the Transferor, the Trustee, the Certificate
Administrator and the Tax Administrator 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, the Certificate Administrator and the
Tax Administrator an opinion of nationally recognized tax counsel to the effect
that (x) the Transfer of such Class R Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and (y)
such Transfer of such Class R Certificate will not be disregarded for United
States federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the Tax Administrator, based upon an Opinion
of Counsel delivered to the Tax Administrator (but not at the Tax
Administrator's expense) to the effect that the holding of an Ownership Interest
in a Class R 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 Class R
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": Any domestic entity classified as a
partnership under the Code if any of its direct or indirect beneficial owners
(other than through a U.S. corporation) are (or, under the applicable
partnership agreement, are permitted to be) Disqualified Non-United States Tax
Persons.
"Distributable Certificate Interest": With respect to any Class of
REMIC III Regular Interests for any Distribution Date, an amount of interest
equal to the amount of Accrued Certificate Interest in respect of such Class of
REMIC III Regular Interests for the related Interest Accrual Period, reduced (to
not less than zero) by that portion, if any, of the Net Aggregate Prepayment
Interest Shortfall for such Distribution Date allocated to such Class of REMIC
III Regular Interests as provided below; provided, however, that if the Class
Principal Balance of such Class of REMIC III Regular Interests is deemed to have
been increased immediately prior to such Distribution Date pursuant to the
proviso to the definition of "Class Principal Balance" because the Principal
Distribution Amount for such Distribution Date includes any collections of
amounts that (x) had previously been determined to constitute Nonrecoverable
Advances, (y) were reimbursed to a party to this Agreement from the principal
portions of P&I Advances and/or payments or other collections of principal on
the Mortgage Pool in a Collection Period prior to the one related to such
Distribution Date (pursuant to subsection (II)(iv) of Section 3.05(a)) and (z)
were recovered in the Collection Period related to such Distribution Date, then
the Distributable Certificate Interest for such Class of REMIC III Regular
Interests and such Distribution Date shall equal the sum of (i) the amount of
the Distributable Certificate Interest for such Class of REMIC III Regular
Interests and
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such Distribution Date, calculated as otherwise provided above without regard to
this proviso, and (ii) an amount equal to the interest that would have accrued
(on a 30/360 Basis), at the Pass-Through Rate for such Class of REMIC III
Regular Interests and in effect for such Interest Accrual Period, on a principal
amount equal to the deemed increase in such Class Principal Balance, during such
Interest Accrual Period and each prior Interest Accrual Period related to a
Distribution Date that occurred subsequent to the earliest Distribution Date on
which a Realized Loss was allocated to such Class of REMIC III Regular Interests
pursuant to Section 4.04. A portion of the Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated to each Class
of Principal Balance REMIC III Regular Interests in an amount equal to the
product of (i) the amount of such Net Aggregate Prepayment Interest Shortfall
and (ii) a fraction, the numerator of which is the Accrued Certificate Interest
for such Class of Principal Balance REMIC III Regular Interests for such
Distribution Date and the denominator of which is the aggregate amount of
Accrued Certificate Interest for all Classes of Principal Balance REMIC III
Regular Interests for such Distribution Date. No portion of any Net Aggregate
Prepayment Interest Shortfall for any Distribution Date shall be allocated to
the Class X-1 or Class X-2 Certificates.
"Distribution Account": The segregated account or accounts created
and maintained by the Certificate Administrator on behalf of the Trustee,
pursuant to Section 3.04(b), in trust for the Certificateholders, which shall be
entitled "Xxxxx Fargo Bank, National Association [or the name of any successor
Certificate Administrator], as Certificate Administrator, on behalf of LaSalle
Bank National Association [or the name of any successor Trustee], as Trustee, in
trust for the registered holders of Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, 2007-PWR18, Distribution
Account".
"Distribution Date": The fourth Business Day following the
Determination Date in each month, commencing in January 2008.
"Document Defect": As defined in Section 2.03(a).
"DRA/Colonial Office Portfolio Loan Group": The DRA/Colonial Office
Portfolio Pooled Mortgage Loan and the DRA/Colonial Office Portfolio Non-Pooled
Pari Passu Companion Loans, together.
"DRA / Colonial Office Portfolio Non-Pooled Pari Passu Companion
Loan": Either of the two loans, one with an original principal balance of
$247,302,419 and the other with an original principal balance of $247,302,419,
that is secured by the same Mortgage encumbering the DRA/Colonial Office
Portfolio Mortgaged Properties as the DRA/Colonial Office Portfolio Pooled
Mortgage Loan. The DRA/Colonial Office Portfolio Non-Pooled Pari Passu Companion
Loans are not "Pooled Mortgage Loans" or part of the Trust Fund, any REMIC Pool
or any Grantor Trust Pool.
"DRA/Colonial Office Portfolio Intercreditor Agreement": The
co-lender agreement between the initial holders of the DRA/Colonial Office
Portfolio Pooled Mortgage Loan and the DRA/Colonial Office Portfolio Non-Pooled
Mortgage Loans.
"DRA/Colonial Office Portfolio Non-Pooled Pari Passu Companion
Noteholder": The holder of the promissory note evidencing a DRA/Colonial Office
Portfolio Non-Pooled Pari Passu Companion Loan.
"DRA/Colonial Office Portfolio Pooled Mortgage Loan": The Pooled
Mortgage Loan in the original principal amount of $247,302,419 that is secured
by the DRA/Colonial Office Portfolio Mortgaged Properties.
"DRA/Colonial Office Portfolio Mortgaged Properties": The Mortgaged
Properties collectively identified on the Pooled Mortgage Loan Schedule as
"DRA/Colonial Office Portfolio".
"Due Date": With respect to (i) 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) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage
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Note on which each Monthly Payment on such Mortgage Loan had been scheduled to
be first due; and (iii) 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.
"XXXXX": The Electronic Data Gathering, Analysis, and Retrieval
System of the Commission, which is the computer system for the receipt,
acceptance, review and dissemination of documents submitted to the Commission in
electronic format.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, the long-term
deposit or long-term unsecured debt obligations of which are rated no less than
"AA-" by S&P (or "A-" by S&P so long as the short-term deposit or short-term
unsecured debt obligations of such depository institution or trust company are
rated no less than "A-1" by S&P), "AA-" by Fitch (or "A-" by Fitch so long as
the short-term deposit or short-term unsecured debt obligations of such
depository institution or trust company are rated no less than "F-1" by Fitch)
and "A (high)" by DBRS (or if not rated by DBRS, an equivalent rating (such as
those listed above for Fitch and S&P) by at least two nationally recognized
statistical rating organizations (which may include S&P, Fitch and/or Xxxxx'x)),
if the deposits are to be held in the account for more than thirty (30) days, or
the short-term deposit or short-term unsecured debt obligations of which are
rated no less than "A-1" by S&P, "F-1" by Fitch and "R-1 (middle)" by DBRS (or,
if not rated by DBRS, an equivalent rating (such as those listed above for S&P
and Fitch) by at least two nationally recognized statistical rating
organizations (which may include S&P, Fitch and/or Xxxxx'x)), if the deposits
are to be held in the account for thirty (30) days or less, in any event at any
time funds are on deposit therein, (ii) a segregated trust account maintained
with the trust department of a federal or state chartered depository institution
or trust company (which, subject to the remainder of this clause (ii), may
include the Certificate Administrator or the Trustee) acting in its fiduciary
capacity, and which, in either case, has a combined capital and surplus of at
least $50,000,000 and is subject to supervision or examination by federal or
state authority and to regulations regarding fiduciary funds on deposit similar
to Title 12 of the Code of Federal Regulations Section 9.10(b), (iii) for so
long as WFB serves as a Master Servicer under this Agreement, an account
maintained with WFB or Xxxxx Fargo Bank Iowa, N.A., each a wholly-owned
subsidiary of Xxxxx Fargo & Co., provided that subsidiary's or its parent's (A)
commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated "A-1" by S&P, "F-1" by Fitch and "R-1 (middle)" in the case
of DBRS (or, if not rated by DBRS, an equivalent rating (such as those listed
above for S&P and Fitch) by at least two nationally recognized statistical
rating organizations (which may include S&P, Fitch and/or Xxxxx'x)), if the
deposits are to be held in the account for 30 days or less, or (B) long-term
unsecured debt obligations are rated at least "AA-" by S&P and "AA-" by Fitch
(or "A-" by S&P and "A-" by Fitch so long as the short-term deposit or
short-term unsecured debt obligations of such subsidiary or its parent are rated
no less than "A-1" by S&P and "F-1" by Fitch) and "AA (low)" by DBRS (or, if not
rated by DBRS, an equivalent rating (such as those listed above for S&P and
Fitch) by at least two nationally recognized statistical rating organizations
(which may include S&P, Fitch and/or Xxxxx'x)), if the deposits are to be held
in the account for more than 30 days, (iv) for so long as PAR serves as a Master
Servicer under this Agreement, an account maintained with Prudential Bank and
Trust, FSB, a wholly-owned subsidiary of Prudential Financial, Inc., provided
that (A) written confirmation from S&P remains in effect (and the conditions
thereunder are satisfied) confirming that maintaining accounts at Prudential
Bank and Trust, FSB, would not in and of itself result in the qualification,
downgrade or withdrawal, as applicable, of the then-current ratings assigned by
S&P to any series of certificates issued in commercial mortgage-backed
securities transactions for which PAR serves as master servicer and (B) such
subsidiary's debt ratings meet the criteria for Fitch otherwise set forth above,
or (v) an account maintained with any one of the following: (x) in the case of
an account that does not and may not potentially contain any funds related to
any Serviced Non-Pooled Mortgage Loan, another insured depository institution
that is acceptable to each Rating Agency for the Rated Certificates (as
evidenced by a written confirmation to the Trustee from each Rating Agency that
the use of such account would not, in and of itself, result in an Adverse Rating
Event with respect to any Class of Rated Certificates), (y) in the case of an
account that does or may potentially contain any funds related to any Serviced
Non-Pooled Mortgage Loan and also does or may potentially contain any funds
related to one or more Pooled Mortgage Loans, another insured depository
institution that is acceptable to each Rating Agency for the Rated Certificates
and each applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities (as evidenced by a written confirmation to the Trustee
from each Rating Agency that the use of such account would not, in and of
itself, result in an
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Adverse Rating Event with respect to any Class of Rated Certificates rated by
such Rating Agency and also from each applicable Rating Agency that the use of
such account would not, in and of itself, result in an Adverse Rating Event with
respect to any class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such applicable Rating Agency), as applicable, and (z) in the case of
an account that does or may potentially contain any funds related to any
Serviced Non-Pooled Mortgage Loan and does not and may not potentially contain
any funds related to one or more Pooled Mortgage Loans, another insured
depository institution that is acceptable to each applicable Rating Agency for
the applicable Non-Pooled Pari Passu Companion Loan Securities (as evidenced by
a written confirmation to the Trustee from each such applicable Rating Agency
that the use of such account would not, in and of itself, result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari Passu Companion
Loan Securities rated by such applicable Rating Agency), as applicable.
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the applicable Special Servicer is
required to make or to request a Master Servicer to make, that must be made
within five Business Days of such Special Servicer becoming aware that it must
be made in order to avoid any material penalty, any material harm to a Mortgaged
Property securing a Serviced Mortgage Loan or any other material adverse
consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property securing a Serviced Mortgage Loan or any Administered REO Property, any
insurance policy covering pollution conditions and/or other environmental
conditions that is maintained from time to time in respect of such Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by a Master Servicer or a
Special Servicer for the account of the Borrower under any Serviced Mortgage
Loan for application toward the payment of real estate taxes, assessments,
insurance premiums (including with respect to any Environmental Insurance
Policy), ground rents (if applicable) and similar items in respect of the
related Mortgaged Property.
"Euroclear": The Euroclear System or any successor thereto.
"Event of Default": As defined in Section 7.01(a).
"Excess Liquidation Proceeds": The excess, if any, of (a) the Net
Liquidation Proceeds from the sale or liquidation of a Specially Serviced Pooled
Mortgage Loan or an Administered REO Property (or the proceeds of the final
payment (including any full, partial or discounted payoff) on a defaulted Pooled
Mortgage Loan or a Pooled Mortgage Loan that is a Corrected Mortgage Loan that
were Received by the Trust, net of any and all fees, expenses and costs payable
therefrom), over (b) the sum of (i) the amount needed to pay all principal,
interest (including Post-ARD Additional Interest (if applicable), 0000-0000
Xxxxxx Xxxxxx Additional Interest (if applicable) and Default Interest),
Prepayment Premiums or Yield Maintenance Charges (as applicable) and late
payment charges payable with respect to such Pooled Mortgage Loan or the related
REO Pooled Mortgage Loan, as the case may be (together with, without
duplication, any outstanding Unliquidated Advances in respect of any such
principal or interest), in full, (ii) any other fees that would constitute
Additional Master Servicing Compensation and/or Additional Special Servicing
Compensation, (iii) any related unreimbursed Servicing Advances (together with,
without duplication, outstanding Unliquidated Advances in respect of prior
Servicing Advances), (iv) all unpaid Advance Interest on any related Advances
(but (for the avoidance of doubt) excluding any Unliquidated Advances), (v) any
related Liquidation Fee and/or Special Servicing Fees paid or payable in respect
of such Specially Serviced Mortgage Loan or the related REO Pooled Mortgage
Loan, (vi) any other Additional Trust Fund Expenses paid or payable in respect
of such Pooled Mortgage Loan or REO Property, and (vii) in the case of any REO
Property relating to a Serviced Mortgage Loan Group, any portion of such Net
Liquidation Proceeds payable to any one or more of the related Serviced
Non-Pooled Mortgage Loan Noteholder(s).
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"Excess Liquidation Proceeds Account": The segregated account
created and maintained by the Certificate Administrator in the name of the
Trustee pursuant to Section 3.04(d) in trust for the Certificateholders, which
shall be entitled "LaSalle Bank National Association [or name of any successor
Trustee], as Trustee, in trust for the registered holders of Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, 2007-PWR18, Excess Liquidation Proceeds Account".
"Excess Servicing Fees": With respect to each Serviced Mortgage Loan
(and any successor REO Mortgage Loan with respect thereto), that portion of the
Master Servicing Fees that accrue at a per annum rate equal to the Excess
Servicing Fee Rate.
"Excess Servicing Fee Rate": With respect to each Serviced Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto), a rate per
annum equal to (i) in the case of a Pooled Mortgage Loan, the annual rate
specified as the "Excess Fee Rate" on the Pooled Mortgage Loan Schedule and (ii)
in the case of each Non-Pooled Mortgage Loan, zero (0) basis points; provided
that such rate shall be subject to reduction at any time following any
resignation of a Master Servicer pursuant to Section 6.04 (if no successor is
appointed in accordance with Section 6.04(b)) or any termination of a Master
Servicer pursuant to Section 7.01, to the extent reasonably necessary (in the
sole discretion of the Trustee) for the Trustee to appoint a qualified successor
Master Servicer (which successor may include the Trustee) that meets the
requirements of Section 7.02.
"Excess Servicing Fee Right": With respect to each Mortgage Loan
(and any successor REO Mortgage Loan with respect thereto), the right to receive
Excess Servicing Fees. In the absence of any transfer of the Excess Servicing
Fee Right, the related Master Servicer shall be the owner of such Excess
Servicing Fee Right.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) Bear, Xxxxxxx & Co. Inc., (ii)
Xxxxxx Xxxxxxx & Co. Incorporated, (iii) any Person directly or indirectly,
through one or more intermediaries, controlling, controlled by or under common
control with Bear, Xxxxxxx & Co. Inc. or Xxxxxx Xxxxxxx & Co. Incorporated and
(iv) any member of any underwriting syndicate or selling group of which any
Person described in clauses (i), (ii) and (iii) is a manager or co-manager with
respect to a Class of Certificates that is investment grade rated by at least
one Rating Agency.
"Fair Value": With respect to any Specially Designated Defaulted
Pooled Mortgage Loan, the amount that, in the applicable Special Servicer's
reasonable judgment, taking into account the factors set forth in the first
sentence of the second paragraph of Section 3.18(b) and such other factors as
such Special Servicer reasonably deems appropriate, is the fair value of such
Mortgage Loan.
"Xxxxxx Mae": The Federal National Mortgage Association or any
successor thereto.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"Final Distribution Date": 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": A determination by the applicable
Special Servicer with respect to any Specially Serviced Mortgage Loan, Corrected
Mortgage Loan or Administered REO Property, or by the applicable Master Servicer
with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any related REO
Property, that there has been a recovery of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries that the
applicable Special Servicer or such Master Servicer has determined, in
accordance with the Servicing Standard, will be ultimately Received by the
Trust; provided that the term Final Recovery Determination shall not apply to:
(i) a Mortgage Loan that was paid in full (including by means of a payoff on
behalf of the Borrower, or the purchase of such Mortgage Loan, by a mezzanine
lender or another creditor of the related Borrower in connection with a Mortgage
Loan
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default, as set forth in the related intercreditor agreement) or (ii) a Mortgage
Loan or REO Property, as the case may be, that was purchased by (a) any Pooled
Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan Purchase
Agreement, (b) a holder of the Purchase Option or its assignee pursuant to
Section 3.18, (c) any Controlling Class Certificateholder(s), a Master Servicer
or the General Special Servicer pursuant to Section 9.01, (d) any related
Non-Pooled Subordinate Noteholder pursuant to a Mortgage Loan Group
Intercreditor Agreement (if such Mortgage Loan is included in a Serviced
Mortgage Loan Group), or (e) any other party with a purchase option in respect
of a Non-Trust-Serviced Pooled Mortgage Loan pursuant to the related Mortgage
Loan Group Intercreditor Agreement and/or the related Non-Trust Servicing
Agreement; and provided, further, that, for purposes of making any such
determination with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property, the applicable Master Servicer shall be entitled to rely
on, and shall be required to follow, any comparable determination made by the
related Non-Trust Master Servicer or the related Non-Trust Special Servicer.
"Fiscal Agent": Any fiscal agent appointed by the Trustee as
provided in Section 8.13.
"Fitch": Fitch, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "Fitch" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the other parties hereto, and specific ratings of Fitch, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of Fitch,
be deemed to refer to such applicable rating category of Fitch, without regard
to any plus or minus or other comparable rating qualification.
"Form 8-K Disclosure Information": As defined in Section 11.09.
"Form 8-K Filing Deadline": As defined in Section 11.09.
"Form 8-K Reportable Event": As defined in Section 11.09.
"Form 10-D Filing Deadline": As defined in Section 11.06.
"Form 10-K Filing Deadline": As defined in Section 11.07.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor thereto.
"GAAP": Generally accepted accounting principles in the United
States.
"General Special Servicer": Centerline Servicing Inc. (or its
successor in interest), in its capacity as special servicer with respect to the
Mortgage Loans and any related REO Properties hereunder, or any successor
special servicer with respect to the Mortgage Loans and any related REO
Properties appointed as provided herein.
"GGP Portfolio Controlling Party": The GGP Portfolio Non-Pooled
Subordinate Noteholder at any time when a PCFII Change of Control Event does not
exist with respect to the GGP Portfolio Loan Group or the Controlling Class
Representative at any time when a PCFII Change of Control Event exists with
respect to the GGP Portfolio Loan Group.
"GGP Portfolio Intercreditor Agreement": The intercreditor agreement
between the initial holders of the GGP Portfolio Pooled Mortgage Loan and the
GGP Portfolio Non-Pooled Subordinate Loan.
"GGP Portfolio Loan Group": The GGP Portfolio Pooled Mortgage Loan
and the GGP Portfolio Non-Pooled Subordinate Loan, together.
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"GGP Portfolio Mortgaged Properties": The Mortgaged Properties
collectively identified on the Pooled Mortgage Loan Schedule as GGP Portfolio.
"GGP Portfolio Non-Pooled Subordinate Loan": The loan with an
original principal balance of $40,000,000 that is secured by the same mortgage
instrument encumbering the GGP Portfolio Mortgaged Properties as the GGP
Portfolio Pooled Mortgage Loan. The GGP Portfolio Non-Pooled Subordinate Loan is
not a "Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool or any
Grantor Trust Pool.
"GGP Portfolio Non-Pooled Subordinate Noteholder": The holder of the
promissory note evidencing the GGP Portfolio Non-Pooled Subordinate Loan.
"GGP Portfolio Pooled Mortgage Loan": The Pooled Mortgage Loan in
the original principal amount of $156,000,000 that is secured by the GGP
Portfolio Mortgaged Properties.
"Global Certificates": The Rule 144A Global Certificates and the
Regulation S Global Certificates, collectively.
"Grantor Trust": A grantor trust as defined under Subpart E of Part
1 of Subchapter J of the Code.
"Grantor Trust Pool": Any of Grantor Trust V or Grantor Trust R.
"Grantor Trust Provisions": Subpart E of Part I of Subchapter J of
the Code, including Treasury Regulations Section 301.7701-4(c)(2).
"Grantor Trust R": The Grantor Trust designated as such in Section
2.17(b).
"Grantor Trust V": The Grantor Trust designated as such in Section
2.17(a).
"Ground Lease": The ground lease pursuant to which any Borrower
holds a leasehold interest in the related Mortgaged Property, together with any
estoppels or other agreements executed and delivered by the ground lessor in
favor of the lender under the related Mortgage Loan(s).
"Group Environmental Insurance Policy": Any Environmental Insurance
Policy that is maintained from time to time in respect of more than one
Mortgaged Property or REO Property.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including those so identified pursuant to
CERCLA or any other federal, state or local environmental related laws and
regulations now existing or hereafter enacted, and specifically including
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Holder": As defined in the definition of "Certificateholder".
"HRC Portfolio 1 Intercreditor Agreement": The intercreditor
agreement between the initial holders of the HRC Portfolio 1 Pooled Mortgage
Loan and the HRC Portfolio 1 Non-Pooled Subordinate Loan.
"HRC Portfolio 1 Loan Group": The HRC Portfolio 1 Pooled Mortgage
Loan and the HRC Portfolio 1 Non-Pooled Subordinate Loan, together.
"HRC Portfolio 1 Mortgaged Properties": The Mortgaged Properties
collectively identified on the Pooled Mortgage Loan Schedule as HRC Portfolio 1.
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"HRC Portfolio 1 Non-Pooled Subordinate Loan": The loan with an
original principal balance of $2,590,000 that is secured by the same mortgage
instrument encumbering the HRC Portfolio 1 Mortgaged Properties as the HRC
Portfolio 1 Pooled Mortgage Loan. The HRC Portfolio 1 Non-Pooled Subordinate
Loan is not a "Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool
or any Grantor Trust Pool.
"HRC Portfolio 1 Non-Pooled Subordinate Noteholder": The holder of
the promissory note evidencing the HRC Portfolio 1 Non-Pooled Subordinate Loan.
"HRC Portfolio 1 Pooled Mortgage Loan": The Pooled Mortgage Loan in
the original principal amount of $26,900,000 that is secured by the HRC
Portfolio 1 Mortgaged Properties.
"HRC Portfolio 2 Intercreditor Agreement": The intercreditor
agreement between the initial holders of the HRC Portfolio 2 Pooled Mortgage
Loan and the HRC Portfolio 2 Non-Pooled Subordinate Loan.
"HRC Portfolio 2 Loan Group": The HRC Portfolio 2 Pooled Mortgage
Loan and the HRC Portfolio 2 Non-Pooled Subordinate Loan, together.
"HRC Portfolio 2 Mortgaged Properties": The Mortgaged Properties
collectively identified on the Pooled Mortgage Loan Schedule as HRC Portfolio 2.
"HRC Portfolio 2 Non-Pooled Subordinate Loan": The loan with an
original principal balance of $2,525,000 that is secured by the same mortgage
instrument encumbering the HRC Portfolio 2 Mortgaged Properties as the HRC
Portfolio 2 Pooled Mortgage Loan. The HRC Portfolio 2 Non-Pooled Subordinate
Loan is not a "Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool
or any Grantor Trust Pool.
"HRC Portfolio 2 Non-Pooled Subordinate Noteholder": The holder of
the promissory note evidencing the HRC Portfolio 2 Non-Pooled Subordinate Loan.
"HRC Portfolio 2 Pooled Mortgage Loan": The Pooled Mortgage Loan in
the original principal amount of $26,225,000 that is secured by the HRC
Portfolio 2 Mortgaged Properties.
"HRC Portfolio 3 Intercreditor Agreement": The intercreditor
agreement between the initial holders of the HRC Portfolio 3 Pooled Mortgage
Loan and the HRC Portfolio 3 Non-Pooled Subordinate Loan.
"HRC Portfolio 3 Loan Group": The HRC Portfolio 3 Pooled Mortgage
Loan and the HRC Portfolio 3 Non-Pooled Subordinate Loan, together.
"HRC Portfolio 3 Mortgaged Properties": The Mortgaged Properties
collectively identified on the Pooled Mortgage Loan Schedule as HRC Portfolio 3.
"HRC Portfolio 3 Non-Pooled Subordinate Loan": The loan with an
original principal balance of $2,595,000 that is secured by the same mortgage
instrument encumbering the HRC Portfolio 3 Mortgaged Properties as the HRC
Portfolio 3 Pooled Mortgage Loan. The HRC Portfolio 3 Non-Pooled Subordinate
Loan is not a "Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool
or any Grantor Trust Pool.
"HRC Portfolio 3 Non-Pooled Subordinate Noteholder": The holder of
the promissory note evidencing the HRC Portfolio 3 Non-Pooled Subordinate Loan.
"HRC Portfolio 3 Pooled Mortgage Loan": The Pooled Mortgage Loan in
the original principal amount of $26,965,000 that is secured by the HRC
Portfolio 3 Mortgaged Properties.
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"Indemnifying Party": As defined in Section 11.14.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, each Pooled
Mortgage Loan Seller, each Master Servicer, each Primary Servicer, each Special
Servicer, the Certificate Administrator, the Tax Administrator, the Trustee,
each Non-Trust Master Servicer (insofar as the relevant matter involves a
Non-Trust-Serviced Pooled Mortgage Loan (whether alone or together with one or
more other Pooled Mortgage Loans)), each Non-Trust Special Servicer (insofar as
the relevant matter involves a Non-Trust-Serviced Pooled Mortgage Loan (whether
alone or together with one or more other Pooled Mortgage Loans)), the
Controlling Class Representative and any and all Affiliates thereof, (ii) does
not have any direct financial interest in or any material indirect financial
interest in any of the Depositor, any Pooled Mortgage Loan Seller, either Master
Servicer, either Primary Servicer, any Special Servicer, the Certificate
Administrator, the Tax Administrator, the Trustee, the related Non-Trust Master
Servicer (insofar as the relevant matter involves a Non-Trust-Serviced Pooled
Mortgage Loan), the related Non-Trust Special Servicer (insofar as the relevant
matter involves a Non-Trust-Serviced Pooled Mortgage Loan), the Controlling
Class Representative or any Affiliate thereof, and (iii) is not connected with
the Depositor, any Pooled Mortgage Loan Seller, either Master Servicer, either
Primary Servicer, any Special Servicer, the Certificate Administrator, the Tax
Administrator, the Trustee, the related Non-Trust Master Servicer (insofar as
the relevant matter involves a Non-Trust-Serviced Pooled Mortgage Loan), the
related Non-Trust Special Servicer (insofar as the relevant matter involves a
Non-Trust-Serviced Pooled Mortgage Loan), the Controlling Class Representative
or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however, that a Person shall not fail to be Independent of the Depositor, any
Pooled Mortgage Loan Seller, either Master Servicer, either Primary Servicer,
any Special Servicer, the Trustee, the applicable Non-Trust Master Servicer, the
applicable Non-Trust Special Servicer, the Controlling Class Representative or
any Affiliate thereof merely because such Person is the beneficial owner of 1%
or less of any class of securities issued by the Depositor, such Pooled Mortgage
Loan Seller, such Master Servicer, such Primary Servicer, such Special Servicer,
the Trustee, such Non-Trust Master Servicer, such Non-Trust Special Servicer,
the Controlling Class Representative or any such Affiliate thereof, as the case
may be, provided that such ownership constitutes less than 1% of the total
assets owned by such Person.
"Independent Contractor": (a) Any Person that would be an
"independent contractor" with respect to any REMIC Pool within the meaning of
Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment
trust (except that the ownership test set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to either Master Servicer, any Special Servicer, the Trustee or the
Trust, delivered to the Trustee), provided that (i) the Trust does not receive
or derive any income from such Person and (ii) the relationship between such
Person and the Trust is at arm's length, all within the meaning of Treasury
Regulations Section 1.856-4(b)(5); or (b) any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, 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, or
cause any income realized in respect of such Administered REO Property to fail
to qualify as Rents from Real Property.
"Initial Pool Balance": The aggregate Cut-off Date Principal Balance
of all the Original Pooled Mortgage Loans.
"Initial Resolution Period": As defined in Section 2.03(b).
"Institutional Accredited Investor": 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.
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"Insurance Policy": With respect to any Mortgage Loan or REO
Property, any hazard insurance policy, terrorism insurance policy, flood
insurance policy, title insurance policy, earthquake insurance policy,
Environmental Insurance Policy, business interruption insurance policy or other
insurance policy that is maintained from time to time in respect of such
Mortgage Loan (or the related Mortgaged Property) or such REO Property, as the
case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy and
received by or on behalf of the Trustee, a Master Servicer, a Special Servicer
(including with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property, any such proceeds remitted to the applicable Master
Servicer by the related Non-Trust Master Servicer or the related Non-Trust
Special Servicer pursuant to the related Mortgage Loan Group Intercreditor
Agreement and/or the related Non-Trust Servicing Agreement), to the extent such
proceeds are not applied to the restoration of the related Mortgaged Property or
REO Property (or placed in a reserve account for that purpose) or released to
the related Borrower or any other third-party pursuant to the terms of the
related Mortgage or lease, in accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(c).
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular
Interest, any REMIC III Regular Interest or any particular REMIC III Component
of a Class of Interest Only Certificates, in each case consisting of one of the
following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any REMIC III Regular Interest or any
particular REMIC III Component of a Class of Interest Only Certificates, for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interest Only Certificates": Collectively, the Class X-1 and Class
X-2 Certificates.
"Interest Reserve Account": The segregated account (or sub-account
of the Distribution Account) created and maintained by the Certificate
Administrator on behalf of the Trustee, pursuant to Section 3.04(c), in trust
for the Certificateholders, which shall be entitled "Xxxxx Fargo Bank, National
Association [or the name of any successor Certificate Administrator], as
Certificate Administrator, on behalf of LaSalle Bank National Association [or
the name of any successor Trustee], as Trustee, in trust for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2007-PWR18, Interest Reserve Account".
"Interest Reserve Amount": With respect to each Pooled Mortgage Loan
that is an Interest Reserve Loan (or the related successor REO Pooled Mortgage
Loan), for any Distribution Date that occurs during February of 2008 or February
of any year thereafter or during January of 2009 or January of any year
thereafter that is not a leap year, an amount equal to one day's interest
accrued at the related Net Mortgage Rate on the related Stated Principal Balance
as of the end of the Collection Period related to such Distribution Date (or, in
the case of any Pooled Mortgage Loan for which the Due Date occurs on a day that
is after the seventh day of each month, as of the Due Date in the month in which
such Distribution Date occurs), but prior to giving effect to the application of
any amounts due on the Due Date occurring in such Collection Period (or, in the
case of any Pooled Mortgage Loan for which the Due Date occurs on a day that is
after the seventh day of each month, due on the Due Date in the month in which
such Distribution Date occurs), to the extent that a Monthly Payment is Received
by the Trust with respect to such Interest Reserve Loan for the related Due Date
in the same month as such Distribution Date on or before the related Master
Servicer Remittance Date or a P&I Advance is made under this Agreement with
respect to such Interest Reserve Loan by such Distribution Date. For purposes of
calculating Interest Reserve Amounts, the Net Mortgage Rate for each Interest
Reserve Loan shall be the Net Mortgage Rate in effect (including as a result of
any step-up provision) under the original terms of such Interest Reserve Loan in
effect as of the Closing Date, without regard to any modifications, extensions,
waivers or amendments of such Interest Reserve Loan subsequent to the Closing
Date (whether entered into by the applicable Master Servicer, the applicable
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Special Servicer, the applicable Non-Trust Master Servicer or the applicable
Non-Trust Special Servicer or in connection with any bankruptcy, insolvency or
other similar proceeding involving the related Borrower).
"Interest Reserve Loan": Any Pooled Mortgage Loan that is an
Actual/360 Mortgage Loan (or any successor REO Pooled Mortgage Loan with respect
thereto).
"Investment Account": Each of the Collection Accounts, the Companion
Note Custodial Accounts, the Subordinate Note Custodial Accounts, the Servicing
Accounts, the Reserve Accounts, the REO Accounts, the Distribution Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account.
"Investment Company Act": The Investment Company Act of 1940, as
amended.
"Investment Grade Certificate": 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.
"Investor-Based Exemption": Any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 90-1 (for transactions by insurance company
pooled separate accounts), PTCE 91-38 (for transactions by bank collective
investment funds), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any similar exemption.
"IRS": The Internal Revenue Service or any successor thereto.
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"LaSalle": LaSalle Bank National Association or its successor in
interest.
"Late Collections": (a) With respect to any Pooled Mortgage Loan,
all amounts Received by the Trust thereon during any Collection Period, whether
as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise, which (as applied under Section 1.03) represent 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 Pooled Mortgage Loan
due or deemed due on a Due Date in a previous Collection Period (or, in the case
of any Pooled Mortgage Loan for which the Due Date occurs on a day that is after
the seventh day of each month, due or deemed due on the Due Date in the calendar
month preceding the month in which such Collection Period ends) or on a Due Date
during or prior to the month of the Cut-off Date for such Pooled Mortgage Loan,
and not previously Received by the Trust; and (b) with respect to any REO Pooled
Mortgage Loan, all amounts Received by the Trust in connection with the related
REO Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
(as applied under Section 1.03) represent 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 Pooled Mortgage Loan or
the principal and/or interest portions of an Assumed Monthly Payment in respect
of such REO Pooled Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period (or, in the case of any Pooled Mortgage Loan for which the Due
Date occurs on a day that is after the seventh day of each month, due or deemed
due on the Due Date in the calendar month preceding the month in which such
Collection Period ends) and not previously Received by the Trust. Late
Collections do not include Default Charges.
"Latest Possible Maturity Date": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any REMIC III Regular Interest, the
"latest possible maturity date" thereof, calculated solely for purposes of
satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii).
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"Letter of Credit": With respect to any Mortgage Loan, any
third-party letter of credit delivered by or at the direction of the related
Borrower pursuant to the terms of such Mortgage Loan in lieu of the
establishment of, or deposit otherwise required to be made into, a Reserve Fund
or otherwise pledged or assigned by the related Borrower as Additional
Collateral.
"Liquidation Event": (a) With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full, (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan, (iii) such
Mortgage Loan is repurchased or replaced by a Pooled Mortgage Loan Seller
pursuant to the related Pooled Mortgage Loan Purchase Agreement, as contemplated
by Section 2.03, (iv) such Mortgage Loan is purchased by the Special Servicer,
the Majority Controlling Class Certificateholder(s) or any assignee of either of
them pursuant to Section 3.18, (v) such Mortgage Loan is purchased by any
Controlling Class Certificateholder(s), a Master Servicer or the Special
Servicer pursuant to Section 9.01, (vi) such Mortgage Loan is acquired by the
Sole Certificateholder(s) in exchange for all of the Certificates pursuant to
Section 9.01, (vii) in the case of any Pooled Mortgage Loan that is included in
a Mortgage Loan Group that includes one or more Non-Pooled Mortgage Loans, such
Mortgage Loan is acquired by a related Non-Pooled Mortgage Loan Noteholder
pursuant to the related Mortgage Loan Group Intercreditor Agreement, (viii) such
Mortgage Loan is paid off or purchased by the holder of a related mezzanine loan
or another creditor of the Borrower in connection with a Mortgage Loan default,
if so permitted and set forth in the related intercreditor agreement, or (ix) in
the case of a Non-Trust-Serviced Pooled Mortgage Loan, such Mortgage Loan is
purchased by a holder of a purchase option with respect thereto pursuant to the
related Non-Trust Servicing Agreement and/or the related Mortgage Loan Group
Intercreditor Agreement; and (b) with respect to any REO Property (and the
related REO Mortgage Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property, (ii) such REO Property
is repurchased or replaced by a Pooled Mortgage Loan Seller pursuant to the
related Pooled Mortgage Loan Purchase Agreement, as contemplated by Section
2.03, (iii) such REO Property is purchased by a Master Servicer, the General
Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01, or (iv) such REO Property is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates pursuant to Section
9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or Section 3.18
(including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": The fee designated as such in, and payable to the
applicable Special Servicer in connection with certain events in respect of a
Specially Serviced Mortgage Loan or an REO Property pursuant to, Section
3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) Received by the Trust in
connection with: (i) the liquidation of a Mortgaged Property, REO Property or
other collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Note
and Mortgage; (ii) the realization upon any deficiency judgment obtained against
a Borrower; (iii) the purchase of a Specially Designated Defaulted Pooled
Mortgage Loan by the Special Servicer, the Majority Controlling Class
Certificateholder(s) or any assignee of either of them pursuant to Section 3.18;
(iv) the repurchase or replacement of a Pooled Mortgage Loan or REO Property by
a Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase Agreement as contemplated by Section 2.03 of this Agreement; (v) the
purchase of a Pooled Mortgage Loan or REO Property by a Master Servicer, a
Special Servicer and/or any Controlling Class Certificateholder(s) pursuant to
Section 9.01; (vi) the acquisition of any Pooled Mortgage Loan or REO Property
by the Sole Certificateholder(s) in exchange for all the Certificates pursuant
to Section 9.01; (vii) the purchase of a Pooled Mortgage Loan included in a
Mortgage Loan Group that includes one or more
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Non-Pooled Subordinate Loans by a related Non-Pooled Subordinate Noteholder
pursuant to the related Mortgage Loan Group Intercreditor Agreement, (viii) the
purchase of a Non-Trust-Serviced Pooled Mortgage Loan by any holder of a
purchase option with respect thereto pursuant to the related Non-Trust Servicing
Agreement and/or the related Mortgage Loan Group Intercreditor Agreement; or
(ix) the payoff or purchase of a Pooled Mortgage Loan or REO Property by the
holder of a related mezzanine loan or another creditor of the Borrower in
connection with a Mortgage Loan default, if so permitted and set forth in the
related intercreditor agreement.
"Loan Group": Either of Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Pooled Mortgage Loans for
which the designation "Group 1" appears opposite such respective Pooled Mortgage
Loans on the Pooled Mortgage Loan Schedule and any successor REO Pooled Mortgage
Loans with respect thereto.
"Loan Group 2": Collectively, all of the Pooled Mortgage Loans for
which the designation "Group 2" appears opposite such respective Pooled Mortgage
Loans on the Pooled Mortgage Loan Schedule and any successor REO Pooled Mortgage
Loans with respect thereto.
"Loan Specific Special Servicer": With respect to each Serviced
Mortgage Loan Group (if any) that entitles the holders of one or more Non-Pooled
Subordinate Loans to replace the special servicer for such Mortgage Loan Group,
any replacement special servicer appointed in accordance with this Agreement and
the related Mortgage Loan Group Intercreditor Agreement. Initially, there is no
Loan-Specific Special Servicer.
"Majority Controlling Class Certificateholder(s)": As of any date of
determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class of Principal
Balance Certificates that constitutes, or the Classes of Principal Balance
Certificates that constitute, the Controlling Class as of such date of
determination.
"Master Servicer": With respect to any Mortgage Loan and any REO
Property acquired in respect thereof, either (a) if such Mortgage Loan is a PMCF
Pooled Mortgage Loan, PAR, or any successor thereto (as master servicer)
appointed as provided herein, or (b) if such Mortgage Loan is a BSCMI Pooled
Mortgage Loan, a PCFII Pooled Mortgage Loan, a WFB Pooled Mortgage Loan or a
Nationwide Pooled Mortgage Loan, WFB, or any successor thereto (as master
servicer) appointed as provided herein. Any reference herein to a "Master
Servicer" hereunder (including Articles VI and VII hereof) shall, if such Master
Servicer is the one described by clause (a) of this definition, also be
construed to refer to the Servicer Report Administrator to the extent of the
rights granted to and obligations imposed on the Servicer Report Administrator
under this Agreement.
"Master Servicer Remittance Amount": With respect to either Master
Servicer for any Master Servicer Remittance Date, an amount equal to (a) all
amounts on deposit in such Master Servicer's Collection Account as of 11:00
a.m., New York City time, on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments with
respect to any Pooled Mortgage Loan that are due on a Due Date following the end
of the related Collection Period (other than, in the case of any Pooled Mortgage
Loan for which the Due Date occurs on a day that is after the seventh day of
each month and such day in the current month happens to be later than the end of
such related Collection Period, in which case such collected Monthly Payment
shall not be withheld until the following month as otherwise contemplated by
this clause (i)), (ii) to the extent not covered by clause (i) above, any
payments of principal (including Principal Prepayments) and interest (including
Post-ARD Additional Interest), Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds Received by the Trust with respect to any Pooled Mortgage
Loan or REO Property after the end of the related Collection Period, (iii) any
Prepayment Premiums and/or Yield Maintenance Charges Received by the Trust with
respect to any Pooled Mortgage Loan or successor REO Pooled Mortgage Loan with
respect thereto after the end of the related Collection Period, (iv) any Excess
Liquidation Proceeds, (v) any amounts payable or reimbursable to any Person from
such Collection Account pursuant to clauses (ii) through (xxi) of Section
3.05(a), and (vi) any amounts deposited in such
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Collection Account in error; provided that the Master Servicer Remittance Amount
with respect to each Master Servicer for the Master Servicer Remittance Date
that occurs in the same calendar month as the anticipated Final Distribution
Date shall be calculated without regard to clauses (b)(i), (b)(ii), (b)(iii) and
(b)(iv) of this definition and provided, further, however, that the foregoing
provisions of this definition shall be construed in a manner that is consistent
with Section 3.02(d).
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan (and any
successor REO Mortgage Loan with respect thereto), the fee designated as such
and payable to the applicable Master Servicer pursuant to Section 3.11(a). The
Master Servicing Fee for each Serviced Mortgage Loan includes the monthly fees
payable to any applicable primary servicer or subservicer engaged by the
applicable Master Servicer and such Master Servicer shall pay such fees to such
primary servicer or subservicer in accordance with the terms of the applicable
Primary Servicing Agreement or Subservicing Agreement.
"Master Servicing Fee Rate": With respect to (i) each Pooled
Mortgage Loan (other than each Non-Trust-Serviced Pooled Mortgage Loan) and any
successor REO Pooled Mortgage Loan with respect thereto, a rate per annum equal
to (a) the rate per annum specified as the "Administrative Fee Rate" on the
Pooled Mortgage Loan Schedule, minus (b) the sum of (x) the Servicer Report
Administrator Fee Rate, (y) the Trustee Fee Rate and (z) the Certificate
Administrator Fee Rate; (ii) the GGP Portfolio Non-Pooled Subordinate Loan, a
rate per annum equal to zero basis points (0.0000%) or such other rate per annum
as may be agreed to in writing by the holder of the GGP Portfolio Non-Pooled
Subordinate Loan; (iii) the Southlake Mall Non-Pooled Pari Passu Companion Loan,
a rate per annum equal to zero basis points (0.0000%); (iv) the Aviata
Apartments Non-Pooled Subordinate Loan, a rate per annum equal to zero basis
points (0.0000%) or such other rate per annum as may be agreed to in writing by
the holder of the Aviata Apartments Non-Pooled Subordinate Loan; (v) the HRC
Portfolio 3 Non-Pooled Subordinate Loan, a rate per annum equal to zero basis
points (0.0000%); (vi) the HRC Portfolio 1 Non-Pooled Subordinate Loan, a rate
per annum equal to zero basis points (0.0000%); (vii) the HRC Portfolio 2
Non-Pooled Subordinate Loan, a rate per annum equal to zero basis points
(0.0000%); (viii) the Circuit City San Xxxxxx Non-Pooled Subordinate Loan, a
rate per annum equal to zero basis points (0.0000%); (ix) DRA/Colonial Office
Portfolio Pooled Mortgage Loan, a rate per annum equal to two basis points
(0.0200%); and (x) the RRI Hotel Portfolio Pooled Mortgage Loan, a rate per
annum equal to two basis points (0.0200%). The parties acknowledge that the
Master Servicing Fee Rate for each Serviced Mortgage Loan includes the rate at
which applicable primary and sub-servicing fees accrue; therefore, if the Master
Servicing Fee Rate is zero, there is no primary or subservicing fee that may be
paid on such mortgage loan.
"Material Breach": With respect to any Pooled Mortgage Loan, any
Breach that materially and adversely affects the interests of the
Certificateholders, or any of them, with respect to the affected Pooled Mortgage
Loan, including but not limited to a material and adverse effect on any of the
distributions payable with respect to any of the Certificates or on the value of
such Certificates.
"Material Document Defect": With respect to any Pooled Mortgage
Loan, any Document Defect that materially and adversely affects the interests of
the Certificateholders, or any of them, with respect to the affected Pooled
Mortgage Loan, including but not limited to a material and adverse effect on any
of the distributions payable with respect to any of the Certificates or on the
value of such Certificates. Notwithstanding the foregoing, the absence of a
Specially Designated Mortgage Loan Document following the date on which such
Specially Designated Mortgage Loan Document is required to be delivered to the
Trustee as described in Section 2.01(d) shall also constitute a Material
Document Defect.
"MERS": Mortgage Electronic Registration Systems, Inc.
"MLMT Series 2007-C1 Pooling and Servicing Agreement": That certain
Pooling and Servicing Agreement, dated as of August 1, 2007, among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor, KeyCorp Real Estate Capital Markets,
Inc., as master servicer no. 1, Xxxxx Fargo Bank, National Association, as
master servicer no. 2, Centerline Servicing Inc., as special servicer, U.S. Bank
National Association, as trustee, Xxxxx Fargo Bank, National Association, as
certificate administrator, and LaSalle Bank National Association, as custodian,
relating to the Xxxxxxx Xxxxx Mortgage Trust 2007-C1, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1.
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"Modified Mortgage Loan": Any Pooled Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the
applicable Special Servicer pursuant to Section 3.20 in a manner that:
(a) materially 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 Pooled Mortgage
Loan);
(b) except as expressly contemplated by the related Mortgage
Loan Documents, results in a release of the lien of the Mortgage on any
material portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount, or the delivery of substitute real
property collateral with a fair market value (as is), that is not less
than the fair market value (as is) of the property to be released, as
determined by an Appraisal delivered to the applicable Special Servicer
(at the expense of the related Borrower and upon which such Special
Servicer may conclusively rely); or
(c) in the reasonable judgment of the Special Servicer,
otherwise materially impairs the security for such Pooled Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment": With respect to any Mortgage Loan, as of any Due
Date, the scheduled monthly debt service payment (or, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, the minimum monthly debt
service payment required to be paid on a current basis) on such Mortgage Loan
that is actually payable by the related Borrower from time to time under the
terms of the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Borrower or by reason of a modification, extension, waiver or amendment granted
or agreed to by the applicable Master Servicer or the applicable Special
Servicer pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced
Pooled Mortgage Loan, by the related Non-Trust Master Servicer or the related
Non-Trust Special Servicer pursuant to the relevant Non-Trust 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
(a) the Monthly Payment due in respect of any ARD Mortgage Loan after its
Anticipated Repayment Date shall not include Additional Interest and (b) the
Monthly Payment due in respect of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage
Loan shall not include any 0000-0000 Xxxxxx Xxxxxx Additional Interest.
"Moody's": Xxxxx'x Investors Service, Inc. or any successor thereto.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust, deed to
secure debt or similar document that secures the related Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Pooled Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note, endorsed (either
on the face thereof or pursuant to a separate allonge) "Pay to the order
of LaSalle Bank National Association, as Trustee for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, 2007-PWR18, without recourse,
representation or warranty" or in blank, and further showing a complete,
unbroken chain of endorsement from the originator; or alternatively, if
the original executed Mortgage Note has been lost, a lost note affidavit
and indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof prior
to the assignment to the Trustee, in each case (unless the particular item
has been delivered to but not returned from the applicable recording
office) with evidence of recording indicated thereon; provided that if the
original (or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, a
copy) of
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the Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused
by the public recording office where such original Mortgage has been
delivered for recordation, or because the public recording office retains
the original or because such original Mortgage has been lost, there shall
be delivered to the Trustee or a Custodian on its behalf a true and
correct copy of such Mortgage, together with (A) in the case of a delay
caused by the public recording office, an Officer's Certificate of the
applicable Pooled Mortgage Loan Seller or a statement from the title agent
to the effect that such original Mortgage has been sent to the appropriate
public recording official for recordation or (B) in the case of an
original Mortgage that has been lost after recordation or retained by the
appropriate public recording office, a certification by the appropriate
county recording office where such Mortgage is recorded that such copy is
a true and complete copy of the original recorded Mortgage;
(iii) the original or a copy of any related Assignment of
Leases (if any such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record thereof prior to the Trustee
(which, in the case of each related Mortgage that has been recorded in the
name of MERS or its designee (each such Mortgage a "Designated MERS
Mortgage"), may be MERS), if any, in each case (unless the particular item
has not been returned from the applicable recording office) with evidence
of recording thereon;
(iv) except in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, 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 Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-PWR18" or, in the case of any
Pooled Mortgage Loan included in a Serviced Mortgage Loan Group, in favor
of "LaSalle Bank National Association, in its capacity as Trustee for the
registered holders of Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18, and in
its capacity as lead lender on behalf of [`the Non-Pooled Mortgage Loan
Noteholder(s) secured by the [insert name of mortgaged property]" (or, in
each case, a copy thereof, certified to be the copy of such assignment
submitted for recording); provided, however, that, if the related Mortgage
is a Designated MERS Mortgage, no assignment of Mortgage or any related
Assignment of Leases in favor of the Trustee will be required to be
prepared or delivered and instead, the related Pooled Mortgage Loan Seller
shall take all actions as are necessary to cause the Trustee to be shown
as, and the Trustee shall take all actions necessary to confirm (and shall
place into the Mortgage File such confirmation in writing from MERS) that
it is shown as, the sole owner of the related Mortgage and any related
Assignment of Leases on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS; provided, further, in the event that MERS is unable to foreclose on
any Mortgaged Property or to take any action as authorized in the related
Mortgage, the Master Servicer or the Special Servicer, as applicable,
shall use its commercially reasonable efforts to take action as it may
deem in reasonable judgment exercised in accordance with the Servicing
Standard to cause such assignments as are necessary to effectuate a
transfer of the relevant documents from MERS to the Trustee on behalf of
the Trust (provided that the Master Servicer or the Special Servicer, as
the case may be, shall take no such action if such action shall (x) cause
either the Master Servicer or the Special Servicer, as the case may be, to
violate the Servicing Standard, (y) expose the Master Servicer or the
Special Servicer, as the case may be, or their officers, directors,
employees or agents to any claim, suit or liability outside the scope of
ordinary creditor's rights litigation (for which the Master Servicer and
Special Servicer are indemnified hereunder), or (z) expand materially the
scope of the Master Servicer's or the Special Servicer's responsibilities
under this Agreement), and the Trustee shall take all actions as are
necessary to confirm that the Trustee on behalf of the Trust is the owner
of the related Mortgage;
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(v) an original or a copy of any 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
showing a complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record thereof prior to the Trustee
(which, in the case of a Designated MERS Mortgage, may be MERS), if any;
(vi) except in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage) executed by the
most recent assignee of record thereof prior to the Trustee or, if none,
by the originator, in favor of "LaSalle Bank National Association, in its
capacity as Trustee for the registered holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-PWR18" (or, in the case of any Pooled Mortgage Loan included
in a Serviced Mortgage Loan Group, in favor of "LaSalle Bank National
Association, in its capacity as Trustee for the registered holders of Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-PWR18, and in its capacity as lead
lender on behalf of [`the Non-Pooled Mortgage Loan Noteholder(s) secured
by the [insert name of mortgaged property]", which assignment may (in any
case) be included as part of the corresponding assignment of Mortgage
referred to in clause (iv) above; provided, however, that, if the related
Mortgage is a Designated MERS Mortgage, no assignment of a related
Security Agreement in favor of the Trustee will be required to be prepared
or delivered and instead, the related Pooled Mortgage Loan Seller shall
take all actions as are necessary to cause the Trustee to be shown as, and
the Trustee shall take all actions necessary to confirm (and shall place
into the Mortgage File such confirmation in writing from MERS) that it is
shown as, the sole owner of the related Mortgage on the records of MERS
for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS;
(vii) originals or copies of any assumption, modification,
written assurance, consolidation, extension and substitution agreements,
if any, with evidence of recording thereon if the applicable document or
instrument being modified or assumed, was recorded (unless the particular
item has not been returned from the applicable recording office), in those
instances where the terms or provisions of the Mortgage, Mortgage Note or
any related security document have been materially modified or the
Mortgage Loan has been assumed;
(viii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan (or,
if the policy has not yet been issued, an original or copy of a written
commitment "marked-up" at the closing of such Mortgage Loan, interim
binder or the pro forma title insurance policy, in each case evidencing a
binding commitment to issue such policy);
(ix) (A) filed copies (with evidence of filing) of any
prior effective UCC Financing Statements in favor of the originator of
such Mortgage Loan or in favor of any assignee prior to the Trustee (but
only to the extent the related Pooled Mortgage Loan Seller had possession
of such UCC Financing Statements prior to the Closing Date) and (B) except
in the case of a Non-Trust-Serviced Pooled Mortgage Loan, an original
assignment thereof, in form suitable for filing, in favor of "LaSalle Bank
National Association, in its capacity as Trustee for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, 2007-PWR18" or, in the case of any
Pooled Mortgage Loan included in a Serviced Mortgage Loan Group, in favor
of "LaSalle Bank National Association, in its capacity as Trustee for the
registered holders of Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18, and in
its capacity as lead lender on behalf of [`the Non-Pooled Mortgage Loan
Noteholder(s) secured by the [insert name of mortgaged property]";
provided, however, that if the related Mortgage is a Designated MERS
Mortgage, no UCC Financing Statement in favor of the Trustee will be
required to be prepared or delivered and instead, the related Pooled
Mortgage Loan Seller shall take all actions as are necessary to cause the
Trustee to be shown as, and the Trustee shall take all actions necessary
to confirm (and shall place into the Mortgage File such confirmation in
writing from MERS) that it is shown as, for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS, the sole owner of any related UCC Financing Statements on record
with the applicable filing office;
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(x) if a material portion of the interest of the Borrower
in the related Mortgaged Property consists of a leasehold interest, the
original or a copy of the Ground Lease relating to such Mortgage Loan,
together with a notice to the related ground lessor of the transfer of the
Mortgage Loan to the Trust or the Trustee on its behalf;
(xi) except in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, any original documents not otherwise described in the
preceding clauses of this definition relating to, evidencing or
constituting Additional Collateral (except that, in the case of such
documents, if any, that are in the form of a Letter of Credit, either (x)
the "Mortgage File" shall initially contain the original of such Letter of
Credit (and a copy of such Letter of Credit shall initially be delivered
to the applicable Master Servicer) and, thereafter, such original shall be
delivered to the applicable Master Servicer (with a copy of such Letter of
Credit to be maintained by the Trustee) with reasonable promptness
following request in connection with the applicable Master Servicer's
performance of its duties hereunder, or (y) the "Mortgage File" shall
initially contain a copy of such Letter of Credit and the original of such
Letter of Credit shall initially be delivered to the applicable Master
Servicer (or a Primary Servicer on its behalf) and, thereafter, such
original shall be maintained by such Master Servicer (or a Primary
Servicer on its behalf)) and, if applicable, the originals or copies of
any intervening assignments thereof;
(xii) an original or a copy of the loan agreement, if any,
related to such Mortgage Loan;
(xiii) an original or a copy of the related guaranty of
payment under such Mortgage Loan, if any;
(xiv) an original or a copy of the lock-box agreement or
cash management agreement relating to such Mortgage Loan, if any;
(xv) an original or a copy of the environmental indemnity
from the related Borrower or other party, if any;
(xvi) an original or a copy of any intercreditor agreement
or similar agreement relating to such Mortgage Loan (including, in the
case of each Pooled Mortgage Loan that is included in a Mortgage Loan
Group, the related Mortgage Loan Group Intercreditor Agreement);
(xvii) an original or a copy of any management agreement with
respect to the related Mortgaged Property if the manager thereunder is not
an Affiliate of the Borrower and the initial Stated Principal Balance of
such Mortgage Loan is greater than $20,000,000;
(xviii) an original or a copy of any master operating lease
with respect to the related Mortgaged Property;
(xix) an original or a copy of any related Environmental
Insurance Policy;
(xx) if the related Mortgaged Property is a hospitality
property that is subject to a franchise or similar arrangement, (a) an
original or a copy of any franchise or similar agreement and (b) either
(i) a signed copy of the comfort letter delivered by the franchisor or
similar person for the benefit of the holder of the Mortgage Loan in
connection with the Pooled Mortgage Loan Seller's origination or
acquisition of the Mortgage Loan, together with such instrument(s) of
notice or transfer (if any) as are necessary to transfer or assign to the
Trust or the Trustee the benefits of such comfort letter, or (ii) a copy
of the comfort letter delivered by the franchisor or similar person for
the benefit of the holder of the Mortgage Loan in connection with such
origination or acquisition of the Mortgage Loan, together with a signed
copy or a fax copy of a new comfort letter (in substantially the same form
and substance as the comfort letter delivered in connection with such
origination or acquisition) by the franchisor or similar person for the
benefit of the Trust or the Trustee (and, if a fax copy of a
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new comfort letter is delivered, then the original copy shall be included
in the "Mortgage File" promptly following receipt thereof by the related
Pooled Mortgage Loan Seller); and
(xxi) a checklist (a "Mortgage File Checklist") of the
applicable documents described above and delivered in connection with the
origination of such Mortgage Loan (which checklist may be in a reasonable
form selected by the related Pooled Mortgage Loan Seller);
provided, however, that (A) 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 (vi), (vii) and (ix) through (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 (and the Trustee
or such Custodian, as the case may be, shall be deemed to have actual knowledge
of the existence of any document listed on the related Mortgage File Checklist);
(B) the "Mortgage File" for each Pooled Mortgage Loan that is included in a
Serviced Mortgage Loan Group shall include a photocopy of the executed Mortgage
Note for each Serviced Non-Pooled Mortgage Loan that is included in such
Serviced Mortgage Loan Group; (C) all the documents in the "Mortgage File" for
each Pooled Mortgage Loan included in a Serviced Mortgage Loan Group (other than
the Mortgage Note for such Pooled Mortgage Loan and any allonges thereto) shall
be deemed to be contained in the "Mortgage File" for each Serviced Non-Pooled
Mortgage Loan that is included in such Serviced Mortgage Loan Group (without
additional copies) and references herein to the "Mortgage File" for each such
Serviced Non-Pooled Mortgage Loan shall be construed in accordance with this
statement; and (D) the "Mortgage File" for a Non-Trust-Serviced Pooled Mortgage
Loan shall also include a copy of the related Non-Trust Servicing Agreement in
effect as of the Closing Date and photocopies of all transfer documents
comparable to those documents described in clauses (iv), (vi) and (ix)(B) of
this definition (originals of which were delivered to the applicable trustee
under the related Non-Trust Servicing Agreement).
"Mortgage File Checklist": As defined in clause (xxi) of the
definition of "Mortgage File".
"Mortgage Loan": Any Pooled Mortgage Loan or Non-Pooled Mortgage
Loan. As used herein, the term "Mortgage Loan" includes the related Mortgage
Loan Documents.
"Mortgage Loan Documents": With respect to any Mortgage Loan, the
documents included or required to be included, as the context may require, in
the related Mortgage File and Servicing File.
"Mortgage Loan Group": Each of the DRA/Colonial Office Portfolio
Loan Group, the RRI Hotel Portfolio Loan Group, GGP Portfolio Loan Group, the
Southlake Mall Loan Group, the Aviata Apartments Loan Group, the HRC Portfolio 3
Loan Group, the HRC Portfolio 1 Loan Group, the HRC Portfolio 2 Loan Group and
the Circuit City San Xxxxxx Loan Group, as applicable.
"Mortgage Loan Group Intercreditor Agreement": Each of the
DRA/Colonial Office Portfolio Intercreditor Agreement, the RRI Hotel Portfolio
Intercreditor Agreement, GGP Portfolio Intercreditor Agreement, the Southlake
Mall Intercreditor Agreement, the Aviata Apartments Intercreditor Agreement, the
HRC Portfolio 3 Intercreditor Agreement, the HRC Portfolio 1 Intercreditor
Agreement, the HRC Portfolio 2 Intercreditor Agreement and the Circuit City San
Xxxxxx Intercreditor Agreement, as applicable.
"Mortgage Note": The original executed promissory note evidencing
the indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": All of the Pooled Mortgage Loans and any successor
REO Pooled Mortgage Loans, collectively, as of any particular date of
determination.
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"Mortgage Rate": 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 and
applicable law, as such rate may be modified in accordance with Section 3.20
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, by the relevant
Non-Trust Master Servicer or the relevant Non-Trust Special Servicer in
accordance with the applicable Non-Trust Servicing Agreement) or in connection
with a bankruptcy, insolvency or similar proceeding involving the related
Borrower. In the case of each 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. In the case of the 0000-0000
Xxxxxx Xxxxxx Pooled Mortgage Loan during any period when any 0000-0000 Xxxxxx
Xxxxxx Additional Interest accrues, the "Mortgage Rate" shall be determined
without regard to the rate per annum at which such 0000-0000 Xxxxxx Xxxxxx
Additional Interest so accrues. Notwithstanding any contrary provision of the
foregoing, in the case of each Closing Date Deposit Mortgage Loan, the "Mortgage
Rate" for the month in which the Closing Date occurs shall be deemed to be equal
to the Mortgage Rate that is scheduled to be in effect on the first day of the
first calendar month that follows the Closing Date (and such Mortgage Rate that
is scheduled to be in effect on the first day of the first calendar month that
follows the Closing Date shall be set forth on the Pooled Mortgage Loan Schedule
as if it were the applicable rate that is in effect on the Closing Date).
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if and
when the context may require, "Mortgaged Property" shall mean, collectively, all
the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Mortgagee": The holder of legal title to any Mortgage Loan,
together with any third parties through which such holder takes actions with
respect to such Mortgage Loan.
"Nationwide": Nationwide Life Insurance Company, or its successor in
interest.
"Nationwide Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either an Original Nationwide Pooled Mortgage Loan or a Replacement Pooled
Mortgage Loan that was delivered under the Nationwide Pooled Mortgage Loan
Purchase Agreement in substitution for an Original Nationwide Pooled Mortgage
Loan.
"Nationwide Pooled Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase and Sale Agreement dated as of December 13, 2007, between
Nationwide as seller and the Depositor as purchaser.
"Nationwide Primary Servicing Agreement": That certain primary
servicing agreement dated as of December 1, 2007, between WFB, as the applicable
Master Servicer for the Nationwide Pooled Mortgage Loans, and Nationwide, as
primary servicer, relating to the primary servicing and administration of the
Nationwide Pooled Mortgage Loans.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments (and prepayment resulting from the receipt of Insurance
Proceeds or Condemnation Proceeds) on the Pooled Mortgage Loans during the
related Collection Period, exceeds (b) the aggregate amount of the Compensating
Interest Payments remitted by the Master Servicers pursuant to Section 3.19(c)
on the Master Servicer Remittance Date related to such Distribution Date.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
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"Net Default Charges": With respect to any Pooled Mortgage Loan or
successor REO Pooled Mortgage Loan, the Default Charges referred to in clause
third of Section 3.26(a), which are payable to the applicable Master Servicer as
Additional Master Servicing Compensation or the applicable Special Servicer as
Additional Special Servicing Compensation.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period 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 Borrower in accordance with the related
Mortgage Loan Documents and applicable law), exceeds the aggregate of all losses
and costs, if any, incurred during such Collection 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 Borrower).
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds held in such Investment Account for the benefit of a Master Servicer, a
Special Servicer or the Certificate Administrator, as applicable, 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 Borrower,
and other than losses of what would otherwise have constituted interest or other
income earned on such funds), exceeds the aggregate of all interest and other
income realized during such Collection Period in connection with the investment
of such funds for the benefit of such Master Servicer, such Special Servicer or
the Certificate Administrator, as applicable, in accordance with Section 3.06;
provided that, in the case of any Investment Account and any particular
investment of funds in such Investment Account, Net Investment Loss shall not
include any loss with respect to such investment which is incurred solely as a
result of the insolvency of the federal or state chartered depositary
institution or trust company at which such Investment Account is maintained, so
long as such depositary institution or trust company (a) satisfied the
qualifications set forth in the definition of "Eligible Account" both at the
time such investment was made and as of a date not more than 30 days prior to
the date of such loss and (b) is not the same Person as the Person that made the
relevant investment.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds Received by the Trust with respect to any particular Specially Serviced
Mortgage Loan or Administered REO Property, over the amount of all Liquidation
Expenses incurred with respect thereto and all related Servicing Advances
reimbursable therefrom.
"Net Mortgage Rate": With respect to (i) any Pooled Mortgage Loan
(or any successor REO Pooled Mortgage Loan with respect thereto), the rate per
annum equal to (a) the related Mortgage Rate minus (b) the related
Administrative Fee Rate and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, the related Post-ARD Additional Interest Rate (and,
in the case of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan during any
period when any 0000-0000 Xxxxxx Xxxxxx Additional Interest accrues, the "Net
Mortgage Rate" shall be determined without regard to the rate per annum at
which such 0000-0000 Xxxxxx Xxxxxx Additional Interest so accrues), and (ii) the
Serviced Non-Pooled Mortgage Loans (or any successor REO Mortgage Loan with
respect thereto), the rate per annum equal to (a) the related Mortgage Rate
minus (b) the related Master Servicing Fee Rate.
"New Lease": 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 if the Special Servicer has the power to
renegotiate the terms of such lease.
"Non-Pooled Mortgage Loan": Any of the DRA/Colonial Office Portfolio
Non-Pooled Pari Passu Companion Loans, the RRI Hotel Portfolio Non-Pooled Pari
Passu Companion Loans, the GGP Portfolio Non-Pooled Subordinate Loan, the
Southlake Mall Non-Pooled Pari Passu Companion Loan, the Aviata Apartments
Non-Pooled Subordinate Loan, the HRC Portfolio 3 Non-Pooled Subordinate Loan,
the HRC Portfolio Non-Pooled Subordinate Loan,
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the HRC Portfolio Non-Pooled Subordinate Loan and the Circuit City San Xxxxxx
Non-Pooled Subordinate Loan, as applicable, each of which loans is part of a
split loan structure that includes a Pooled Mortgage Loan as identified in the
Preliminary Statement hereto (whether or not such split loan structure is
principally serviced and administered under this Agreement).
"Non-Pooled Mortgage Loan Noteholder": The holder of the promissory
note evidencing any Non-Pooled Mortgage Loan.
"Non-Pooled Pari Passu Companion Loan": Any Non-Pooled Mortgage Loan
that is secured by the same Mortgage encumbering the same Mortgaged Property as
the one encumbering a Pooled Mortgage Loan and is pari passu in right of payment
with such Pooled Mortgage Loan. The Non-Pooled Pari Passu Companion Loans are
not "Pooled Mortgage Loans" or part of the Trust Fund, any REMIC Pool or any
Grantor Trust Pool. For the avoidance of doubt, only the DRA/Colonial Office
Portfolio Non-Pooled Pari Passu Companion Loans, the RRI Hotel Portfolio
Non-Pooled Pari Passu Companion Loans and the Southlake Mall Non-Pooled Pari
Passu Companion Loan constitute Non-Pooled Pari Passu Companion Loans under this
Agreement.
"Non-Pooled Pari Passu Companion Loan Securities": For so long as
any Serviced Non-Pooled Pari Passu Companion Loan is serviced and administered
under this Agreement, any class of securities backed by such Non-Pooled Pari
Passu Companion Loan. For the avoidance of doubt, after any date when the
Southlake Mall Non-Pooled Pari Passu Companion Loan has been included in another
commercial mortgage securitization pursuant to which rated securities have been
or are subsequently issued, such securities shall constitute Non-Pooled Pari
Passu Companion Loan Securities.
"Non-Pooled Subordinate Loan": Any of the GGP Portfolio Non-Pooled
Subordinate Loan, the Aviata Apartments Non-Pooled Subordinate Loan, the HRC
Portfolio 3 Non-Pooled Subordinate Loan, the HRC Portfolio 1 Non-Pooled
Subordinate Loan, the HRC Portfolio 2 Non-Pooled Subordinate Loan and the
Circuit City San Xxxxxx Non-Pooled Subordinate Loan, as applicable, each of
which loans is secured by the same Mortgage encumbering the same Mortgaged
Property as the one encumbering a Pooled Mortgage Loan and is subordinate in
right of payment to such Pooled Mortgage Loan. The Non-Pooled Subordinate Loans
are not "Pooled Mortgage Loans" or part of the Trust Fund, any REMIC Pool or any
Grantor Trust Pool.
"Non-Pooled Subordinate Noteholder: As applicable, (i) the GGP
Portfolio Non-Pooled Subordinate Noteholder, (ii) the Aviata Apartments
Non-Pooled Subordinate Noteholder, (iii) the HRC Portfolio 3 Non-Pooled
Subordinate Noteholder, (iv) the HRC Portfolio 1 Non-Pooled Subordinate
Noteholder, (v) the HRC Portfolio 2 Non-Pooled Subordinate Noteholder and (vi)
the Circuit City San Xxxxxx Non-Pooled Subordinate Noteholder.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance (including
any Unliquidated Advance that constitutes a Nonrecoverable P&I Advance) or
Nonrecoverable Servicing Advance (including any Unliquidated Advance that
constitutes a Nonrecoverable Servicing Advance).
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance, or any Unliquidated Advance in respect of a prior P&I Advance,
previously made and any P&I Advance contemplated to be made in respect of any
Pooled Mortgage Loan or related successor REO Pooled Mortgage Loan that, as
determined by the applicable Master Servicer or, if applicable, by the Trustee,
or by the applicable Special Servicer pursuant to the second paragraph of
Section 4.03(c), in its reasonable, good faith judgment, will not be ultimately
recoverable, or in fact was not ultimately recovered, from late payments,
Default Charges, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
or any other recovery on or in respect of such Mortgage Loan or the related REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors). In the case of a Cross-Collateralized Mortgage
Loan, such recoverability determination shall take into account the
cross-collateralization of the related Cross-Collateralized Group.
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"Nonrecoverable Servicing Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 3.11(h), any
Servicing Advance, or any Unliquidated Advance in respect of a prior Servicing
Advance, previously made, and any Servicing Advance proposed to be made, in
respect of any Mortgage Loan or REO Property that, as determined by the
applicable Master Servicer or, if applicable or the Trustee, in its reasonable,
good faith judgment, will not be ultimately recoverable, or in fact was not
ultimately recovered, from late payments, Default Charges, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in
respect of such Mortgage Loan or such REO Property (without giving effect to
potential recoveries on deficiency judgments or recoveries from guarantors). In
the case of a Cross-Collateralized Mortgage Loan, such recoverability
determination shall take into account the cross-collateralization of the related
Cross-Collateralized Group.
"Non-Registered Certificate": Any Certificate that has not been
subject to registration under the Securities Act. As of the Closing Date, the
Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q,
Class S, Class R and Class V Certificates are Non-Registered Certificates.
"Non-Trust Master Servicer": With respect to each Non-Trust-Serviced
Pooled Mortgage Loan, the master servicer under the related Non-Trust Servicing
Agreement.
"Non-Trust-Serviced Mortgage Loan Group": Any group of mortgage
loans that is primarily serviced and administered under the pooling and
servicing agreement for another commercial mortgage securitization trust. For
the avoidance of doubt, only the DRA/Colonial Office Portfolio Loan Group and
the RRI Hotel Portfolio Loan Group constitute Non-Trust-Serviced Mortgage Loan
Groups under this Agreement.
"Non-Trust-Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan
that is part of a Non-Trust-Serviced Mortgage Loan Group. For the avoidance of
doubt, only the DRA/Colonial Office Portfolio Pooled Mortgage Loan and the RRI
Hotel Portfolio Pooled Mortgage Loan constitutes Non-Trust-Serviced Pooled
Mortgage Loans under this Agreement.
"Non-Trust-Servicing Agreement": With respect to each
Non-Trust-Serviced Pooled Mortgage Loan and the Non-Trust-Serviced Mortgage Loan
Group of which it is a part, the separate agreement pursuant to which such
Non-Trust-Serviced Pooled Mortgage Loan and the related Non-Pooled Mortgage
Loans are (or, if applicable, any related REO Property is) to be principally
serviced and administered, which agreement is (i) the MLMT 2007-C1 Pooling and
Servicing Agreement, in the case of the DRA/Colonial Office Portfolio Loan
Group, and (ii) the BSCMSI 2007-PWR17 Pooling and Servicing Agreement, in the
case of the RRI Hotel Portfolio Loan Group.
"Non-Trust Special Servicer": With respect to the Non-Trust Serviced
Pooled Mortgage Loan, the special servicer under the Non-Trust Servicing
Agreement.
"Non-United States Tax Person": Any Person other than a United
States Tax Person.
"Officer's Certificate": A certificate signed by a Servicing Officer
of a Master Servicer or Special Servicer or a Responsible Officer of the
Certificate Administrator or the Trustee, as the case may be, or, 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, Director or
Managing Director, an Assistant Vice President or any other authorized officer
(however denominated) or another officer customarily performing functions
similar to those performed by any of the above designated officers or, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Opinion of Counsel": A written opinion of counsel (who must, in the
case of any such opinion relating to the taxation of the Trust Fund or any
portion thereof, the status of any REMIC Pool as a REMIC, the status of any
Grantor Trust Pool as a Grantor Trust for taxation purposes or a resignation
under Section 6.04, be Independent counsel,
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but who otherwise may be salaried counsel for the Depositor, the Certificate
Administrator, the Trustee, the Tax Administrator, either Master Servicer or any
Special Servicer), which written opinion is acceptable and delivered to the
addressee(s) thereof and which opinion of counsel, except as provided herein,
shall not be at the expense of the Certificate Administrator, the Trustee or the
Trust Fund.
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original BSCMI Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-B.
"Original Nationwide Pooled Mortgage Loans": The mortgage loans
initially identified on the schedule attached hereto as Schedule I-F.
"Original PCFII Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-E.
"Original PMCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-A.
"Original Pooled Mortgage Loans": The mortgage loans initially
identified on the schedules attached hereto as Schedule I-A, Schedule I-B,
Schedule I-C, Schedule I-E and Schedule I-F.
"Original WFB Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-C.
"Other Crossed Loans": As defined in Section 2.03(b).
"Other Securitization": As defined in Section 11.03.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": In the case of any Certificate, any ownership
or security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": With respect to any Pooled Mortgage Loan or REO
Pooled Mortgage Loan (including a Non-Trust-Serviced Pooled Mortgage Loan or any
successor REO Pooled Mortgage Loan thereto), any advance made by the applicable
Master Servicer or the Trustee pursuant to Section 4.03.
"P&I Advance Date": The Business Day preceding each Distribution
Date.
"PAR": Prudential Asset Resources, Inc. or its successor in
interest.
"Pass-Through Rate": The per annum rate at which interest accrues in
respect of any Class of REMIC III Regular Interests during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.16(f).
"Past Grace Period Loan": With respect to any Monthly Payment or
Assumed Monthly Payment due and payable, or deemed due and payable, in respect
of any particular Pooled Mortgage Loan, the status attributable to that Mortgage
Loan by reason of, if applicable, the fact that such Monthly Payment or Assumed
Monthly Payment remains unpaid past its Due Date and past any applicable grace
period for such Monthly Payment or Assumed Monthly Payment.
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"PCAOB": The Public Company Accounting Oversight Board.
"PCFII": Principal Commercial Funding II, LLC, or its successor in
interest.
"PCFII Change of Control Event": With respect to any PCFII Mortgage
Loan Group, as of any date of determination, (a) (i) the initial unpaid
principal balance of the related Non-Pooled Subordinate Loan minus (ii) the sum
of (x) any scheduled payments or prepayments of principal allocated to, and
received on, the related Non-Pooled Subordinate Loan, (y) any Appraisal
Reduction Amount in effect as of such date of determination and allocable to the
related PCFII Non-Pooled Subordinate Loan and (z) any realized losses allocated
to the related Non-Pooled Subordinate Loan is less than (b) 25% of the
difference between (x) the initial unpaid principal balance of the related
Non-Pooled Subordinate Loan and (y) any scheduled payments or prepayments of
principal allocated to, and received on, the related Non-Pooled Subordinate
Loan.
"PCFII Mortgage Loan Group": One or more of the GGP Portfolio Loan
Group and the Aviata Apartments Loan Group, as applicable.
"PCFII Non-Pooled Subordinate Noteholder": One or more of the GGP
Portfolio Non-Pooled Subordinate Noteholder and the Aviata Apartments Non-Pooled
Subordinate Noteholder, as applicable.
"PCFII Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either an Original PCFII Pooled Mortgage Loan or a Replacement Pooled Mortgage
Loan that was delivered under the PCFII Pooled Mortgage Loan Purchase Agreement
in substitution for an Original PCFII Pooled Mortgage Loan.
"PCFII Pooled Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase and Sale Agreement dated as of December 13, 2007, between
PCFII as seller and the Depositor as purchaser.
"Percentage Interest": With respect to (a) any Interest Only
Certificate or Principal Balance 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 initial Class Principal Balance or
initial Class Notional Amount, as the case may be, of the relevant Class as of
the Closing Date; and (b) any Class R or Class V Certificate, the percentage
interest in distributions to be made with respect to the relevant Class, as
specified on the face of such Certificate.
"Performance Certification": As defined in Section 11.08.
"Performing Party": As defined in Section 11.14.
"Performing Serviced Mortgage Loan": Any Serviced Mortgage Loan that
is not a Specially Serviced Mortgage Loan.
"Permitted Investments": Any one or more of the following
obligations or securities:
(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, provided that each
such obligation is backed by the full faith and credit of the
United States;
(ii) repurchase agreements on obligations specified in clause (i)
of this definition, provided that the short-term unsecured
debt obligations of the party agreeing to repurchase such
obligations are at the time of investment rated in the highest
short-term debt rating category of: (x) in the case of an
investment being made with funds that do not relate in whole
or in part to any Serviced Non-
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Pooled Mortgage Loan, each Rating Agency for the Rated
Certificates (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 Rated Certificates rated by such
Rating Agency, as confirmed in writing to the Trustee by such
Rating Agency), (y) in the case of an investment being made
with funds that relate in whole or in part to any Serviced
Non-Pooled Mortgage Loan and also relate to one or more Pooled
Mortgage Loans, each Rating Agency for the Rated Certificates
and each applicable Rating Agency for the related Non-Pooled
Pari Passu Companion Loan Securities (as evidenced by a
written confirmation to the Trustee from each Rating Agency
that such investment would not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in
and of itself, result in an Adverse Rating Event with respect
to any class of such Non-Pooled Pari Passu Companion Loan
Securities rated by such applicable Rating Agency), as
applicable, or (z) in the case of an investment being made
with funds that relate solely to a Serviced Non-Pooled
Mortgage Loan and do not relate to one or more Pooled Mortgage
Loans, each applicable Rating Agency for the related
Non-Pooled Pari Passu Companion Loan Securities (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
such Non-Pooled Pari Passu Companion Loan Securities rated by
such applicable Rating Agency as confirmed in writing to the
Trustee by such Rating Agency), as applicable;
(iii) federal funds, unsecured uncertificated certificates of
deposit, time deposits and bankers' acceptances of any bank or
trust company organized under the laws of the United States or
any state thereof, provided that the short-term unsecured debt
obligations of such bank or trust company are at the time of
investment rated in the highest short-term debt rating
category of: (x) in the case of an investment being made with
funds that do not relate in whole or in part to any Serviced
Non-Pooled Mortgage Loan, each Rating Agency for the Rated
Certificates (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 Rated Certificates rated by such
Rating Agency, as confirmed in writing to the Trustee by such
Rating Agency), (y) in the case of an investment being made
with funds that relate in whole or in part to any Serviced
Non-Pooled Mortgage Loan and also relate to one or more Pooled
Mortgage Loans, each Rating Agency for the Rated Certificates
and each applicable Rating Agency for the related Non-Pooled
Pari Passu Companion Loan Securities (as evidenced by a
written confirmation to the Trustee from each Rating Agency
that such investment would not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in
and of itself, result in an Adverse Rating Event with respect
to any class of such Non-Pooled Pari Passu Companion Loan
Securities rated by such applicable Rating Agency), as
applicable, or (z) in the case of an investment being made
with funds that relate solely to a Serviced Non-Pooled
Mortgage Loan and do not relate to one or more Pooled Mortgage
Loans, each applicable Rating Agency for the related
Non-Pooled Pari Passu Companion Loan Securities (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
such Non-Pooled Pari Passu Companion Loan Securities rated by
such applicable Rating Agency as confirmed in writing to the
Trustee by such Rating Agency), as applicable;
(iv) commercial paper of any corporation incorporated under the
laws of the United States or any state thereof (or of any
corporation not so incorporated, provided that 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), provided that such commercial
paper is rated in the highest short-term debt rating category
of: (x) in the case of an investment being made with funds
that do not relate in whole or in part to any Serviced
Non-Pooled Mortgage Loan, each
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Rating Agency for the Rated Certificates (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 Rated
Certificates rated by such Rating Agency, as confirmed in
writing to the Trustee by such Rating Agency), (y) in the case
of an investment being made with funds that relate in whole or
in part to any Serviced Non-Pooled Mortgage Loan and also
relate to one or more Pooled Mortgage Loans, each Rating
Agency for the Rated Certificates and each applicable Rating
Agency for the related Non-Pooled Pari Passu Companion Loan
Securities (as evidenced by a written confirmation to the
Trustee from each Rating Agency that such investment would
not, in and of itself, result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such
Rating Agency and also from each applicable Rating Agency that
such investment would not, in and of itself, result in an
Adverse Rating Event with respect to any class of such
Non-Pooled Pari Passu Companion Loan Securities rated by such
applicable Rating Agency), as applicable, or (z) in the case
of an investment being made with funds that relate solely to a
Serviced Non-Pooled Mortgage Loan and do not relate to one or
more Pooled Mortgage Loans, each applicable Rating Agency for
the related Non-Pooled Pari Passu Companion Loan Securities
(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 such Non-Pooled Pari Passu Companion Loan
Securities rated by such applicable Rating Agency as confirmed
in writing to the Trustee by such Rating Agency), as
applicable;
(v) units of money market funds (including those managed or
advised by the Certificate Administrator or its Affiliates)
which maintain a constant net asset value, provided that such
units of money market funds are rated in the highest
applicable rating category of: (x) in the case of an
investment being made with funds that do not relate in whole
or in part to any Serviced Non-Pooled Mortgage Loan, each
Rating Agency for the Rated Certificates (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 Rated
Certificates rated by such Rating Agency, as confirmed in
writing to the Trustee by such Rating Agency), (y) in the case
of an investment being made with funds that relate in whole or
in part to any Serviced Non-Pooled Mortgage Loan and also
relate to one or more Pooled Mortgage Loans, each Rating
Agency for the Rated Certificates and each applicable Rating
Agency for the related Non-Pooled Pari Passu Companion Loan
Securities (as evidenced by a written confirmation to the
Trustee from each Rating Agency that such investment would
not, in and of itself, result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such
Rating Agency and also from each applicable Rating Agency that
such investment would not, in and of itself, result in an
Adverse Rating Event with respect to any class of such
Non-Pooled Pari Passu Companion Loan Securities rated by such
applicable Rating Agency), as applicable, or (z) in the case
of an investment being made with funds that relate solely to a
Serviced Non-Pooled Mortgage Loan and do not relate to one or
more Pooled Mortgage Loans, each applicable Rating Agency for
the related Non-Pooled Pari Passu Companion Loan Securities
(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 such Non-Pooled Pari Passu Companion Loan
Securities rated by such applicable Rating Agency as confirmed
in writing to the Trustee by such Rating Agency), as
applicable; or
(vi) any other obligation or security that is acceptable to: (x) in
the case of an investment being made with funds that do not
relate in whole or in part to any Serviced Non-Pooled Mortgage
Loan, each Rating Agency for the Rated Certificates (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 Rated Certificates rated by such Rating Agency, as
confirmed in writing to the Trustee by such Rating Agency),
(y) in the case of an investment being made with funds that
relate in whole or in part to any Serviced Non-Pooled Mortgage
Loan and also relate to one or more Pooled Mortgage Loans,
each Rating Agency for the Rated Certificates and each
applicable Rating Agency for the related
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Non-Pooled Pari Passu Companion Loan Securities (as evidenced
by a written confirmation to the Trustee from each Rating
Agency that such investment would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency and also from
each applicable Rating Agency that such investment would not,
in and of itself, result in an Adverse Rating Event with
respect to any class of such Non-Pooled Pari Passu Companion
Loan Securities rated by such applicable Rating Agency), as
applicable, or (z) in the case of an investment being made
with funds that relate solely to a Serviced Non-Pooled
Mortgage Loan and do not relate to one or more Pooled Mortgage
Loans, each applicable Rating Agency for the related
Non-Pooled Pari Passu Companion Loan Securities (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
such Non-Pooled Pari Passu Companion Loan Securities rated by
such applicable Rating Agency as confirmed in writing to the
Trustee by such Rating Agency), as applicable;
provided that each investment described hereunder shall not (A) evidence either
the right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) 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, (C) be sold prior to stated maturity if such sale
would result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code or (D) have an "r" highlighter or
other comparable qualifier attached to its rating; and provided, further, that
each investment described hereunder must have (X) a predetermined fixed amount
of principal due at maturity (that cannot vary or change), (Y) an original
maturity of not more than 365 days and a remaining maturity of not more than 30
days and (Z) except in the case of a Permitted Investment described in clause
(v) of this definition, a fixed interest rate or an interest rate that is tied
to a single interest rate index plus a single fixed spread and moves
proportionately with that index; and provided, further, that each investment
described hereunder must be a "cash flow investment" (within the meaning of the
REMIC Provisions); and, provided, further, that, for purposes of any condition
set forth above to the effect that any investment or the issuer thereof must
have a minimum rating by DBRS, such condition shall be deemed to be satisfied if
both (a) such investment or the issuer thereof, as applicable, is not rated by
DBRS and (b) such investment or the issuer thereof, as applicable, has ratings
that satisfy the applicable rating conditions provided for above with respect to
S&P and Fitch or ratings from at least two nationally recognized statistical
rating organizations (which may include S&P, Fitch and/or Xxxxx'x) that are
equivalent to the related DBRS rating level otherwise set forth above.
"Permitted Transferee": Any Transferee of a Class R Certificate
other than (a) a Disqualified Organization, (b) a Disqualified Non-United States
Tax Person, (c) a Disqualified Partnership, (d) 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 or (e) any other Person as to whom, as determined by the Tax
Administrator (based upon an Opinion of Counsel, obtained at the request of the
Tax Administrator at the expense of such Person or the Person seeking to
Transfer a Class R Certificate, supporting such determination), the Transfer of
a Class R Certificate may cause any REMIC Pool to fail to qualify as a REMIC at
any time that any Certificate is outstanding.
"Person": 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.
"PGI": Principal Global Investors, LLC, or its successor in
interest.
"PGI Primary Servicing Agreement": That certain primary servicing
agreement dated as of December 1, 2007, between WFB, as the applicable Master
Servicer for the PCFII Pooled Mortgage Loans, and Principal Global Investors,
LLC, as primary servicer, relating to the primary servicing and administration
of the PCFII Pooled Mortgage Loans.
"Phase I Environmental Assessment": A "Phase I assessment" as
described in, and meeting the criteria of, the American Society for Testing and
Materials, plus a radon and asbestos inspection.
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"Plan": Any of those employee benefit plans and other benefit plans
and arrangements, including individual retirement accounts and annuities, Xxxxx
plans and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that are subject to ERISA or Section 4975 of the Code.
"PMCF": Prudential Mortgage Capital Funding, LLC, or its successor
in interest.
"PMCF Pooled Mortgage Loan": Any Pooled Mortgage Loan that is either
an Original PMCF Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that
was delivered under the PMCF Pooled Mortgage Loan Purchase Agreement in
substitution for an Original PMCF Pooled Mortgage Loan.
"PMCF Pooled Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase and Sale Agreement dated as of December 13, 2007, between
PMCF as seller and the Depositor as purchaser.
"Pooled Mortgage Loan": Each of the Original Pooled Mortgage Loans
and Replacement Pooled Mortgage Loans that are from time to time held in the
Trust Fund, including any such mortgage loan that has been wholly or partially
defeased. As used herein, the term "Pooled Mortgage Loan" includes the related
Mortgage Loan Documents.
"Pooled Mortgage Loan Purchase Agreement": Any of the BSCMI Pooled
Mortgage Loan Purchase Agreement, the WFB Pooled Mortgage Loan Purchase
Agreement, the PMCF Pooled Mortgage Loan Purchase Agreement, the PCFII Pooled
Mortgage Loan Purchase Agreement and the Nationwide Pooled Mortgage Loan
Purchase Agreement.
"Pooled Mortgage Loan Schedule": Collectively, the five schedules of
Pooled Mortgage Loans attached hereto as Schedule I-A, Schedule I-B, Schedule
I-C, Schedule I-E and Schedule I-F, respectively, as any such schedule may be
amended from time to time in accordance with this Agreement. Such schedules
shall set forth the following information with respect to each Pooled Mortgage
Loan:
(i) the loan number assigned to the Pooled Mortgage Loan on the
books and records of the related Pooled Mortgage Loan
Seller as of the Closing Date and the identification number
assigned to such Pooled Mortgage Loan in the Prospectus
Supplement;
(ii) the name of the Pooled Mortgage Loan/Mortgaged Property;
(iii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iv) the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(v) the amount of the Monthly Payment due on the first Due Date
following the Closing Date (and, if a Pooled Mortgage Loan
currently requires only payments of interest but begins to
amortize prior to Stated Maturity Date, on the first Due
Date after amortization begins);
(vi) the Mortgage Rate as of the Closing Date and the Interest
Accrual Basis;
(vii) the Stated Maturity Date and the original and remaining
term to Stated Maturity Date (or, in the case of a Pooled
Mortgage Loan that is an ARD Mortgage Loan, the Anticipated
Repayment Date and the original and remaining term to the
Anticipated Repayment Date);
(viii) in the case of a Pooled Mortgage Loan that is a Balloon
Mortgage Loan or an ARD Mortgage Loan, the original and
remaining amortization term;
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(ix) whether such Pooled Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, an identification of the Pooled
Mortgage Loans with which such Pooled Mortgage Loan is
cross-collateralized;
(x) whether such Pooled Mortgage Loan provides for defeasance
and if so, the period during which defeasance may occur;
(xi) whether such Pooled Mortgage Loan is secured by a fee
simple interest in the related Mortgaged Property; by the
Borrower's leasehold interest, and a fee simple interest,
in the related Mortgaged Property; or solely by a leasehold
interest in the related Mortgaged Property;
(xii) the name of the related Pooled Mortgage Loan Seller;
(xiii) the Administrative Fee Rate;
(xiv) the Due Date;
(xv) the number of grace days before such Pooled Mortgage Loan
requires a late payment charge in connection with a
delinquent Monthly Payment;
(xvi) whether there exists (and, if so, the amount of) any letter
of credit that constitutes Additional Collateral;
(xvii) the related Borrower;
(xviii) the initial Master Servicer and the Master Servicing Fee
Rate for such Pooled Mortgage Loan;
(xix) the applicable Loan Group to which such Pooled Mortgage
Loan belongs; and
(xx) in the case of a Non-Trust-Serviced Pooled Mortgage Loan,
the applicable rate per annum at which administrative fees
payable under the applicable Non-Trust Servicing Agreement
accrue and whether such fees accrue on a 30/360 Basis or an
Actual/360 Basis.
"Pooled Mortgage Loan Sellers": Collectively, BSCMI, Nationwide,
PCFII, PMCF and WFB.
"Post-ARD Additional Interest": With respect to any ARD Mortgage
Loan after its Anticipated Repayment Date, all interest accrued on the principal
balance of such ARD Mortgage Loan at the Post-ARD Additional Interest Rate (the
payment of which interest shall, under the terms of such ARD Mortgage Loan, be
deferred until the principal balance of such ARD Mortgage Loan and all other
interest thereon has been paid in full), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Rate": With respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, the incremental increase in
the Mortgage Rate for such ARD Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the Pooled
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests
and the Certificates for federal income tax purposes, the assumptions that each
Pooled Mortgage Loan that is an ARD Mortgage Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Pooled Mortgage Loan is otherwise
voluntarily prepaid prior to its Stated Maturity Date.
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"Prepayment Interest Excess": With respect to any Pooled Mortgage
Loan (including a Non-Trust-Serviced Pooled 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 the Due Date for such Pooled Mortgage Loan
in any Collection Period, any payment of interest (net of related Master
Servicing Fees (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan,
the rate per annum at which the master or similar servicing and administrative
fees payable therefrom under the related Non-Trust Servicing Agreement accrue as
set forth in the definition of "Administrative Fee Rate") and, in any case,
further net of any portion of such interest that represents Default Charges,
Post-ARD Additional Interest and/or 0000-0000 Xxxxxx Xxxxxx Additional Interest)
actually Received by the Trust and collected from the related Borrower or out of
such Insurance Proceeds or Condemnation Proceeds, as the case may be, and
intended to cover the period from and after such Due Date to, but not including,
the date of prepayment (exclusive, for the avoidance of doubt, of any related
Prepayment Premium or Yield Maintenance Charge that may have been collected).
"Prepayment Interest Shortfall": With respect to any Pooled Mortgage
Loan (including a Non-Trust-Serviced Pooled 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 the Due Date for such Pooled Mortgage
Loan in any Collection Period the amount of interest, to the extent not
collected from the related Borrower or otherwise (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected),
not Received by the Trust, that would have accrued at a rate per annum equal to
the related Mortgage Rate (net of the Master Servicing Fee Rate (and, in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, the rate per annum at which
the master or similar servicing and administrative fees payable therefrom under
the related Non-Trust Servicing Agreement accrue as set forth in the definition
of "Administrative Fee Rate") and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, the related Post-ARD Additional Interest Rate and,
in the case of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan during any
period when any 0000-0000 Xxxxxx Xxxxxx Additional Interest accrues, the amount
of Prepayment Interest Shortfall shall be determined without regard to any
0000-0000 Xxxxxx Xxxxxx Additional Interest that so accrues) on the amount of
such Principal Prepayment (or other early recovery of principal) during the
period from the date to which interest thereon was paid by the related Borrower
to, but not including, such Due Date.
"Prepayment Premium": With respect to any Mortgage Loan, any
premium, fee or other additional amount (other than a Yield Maintenance Charge)
paid or payable, as the context requires, by a Borrower in connection with a
Principal Prepayment on, or other early collection of principal of, such
Mortgage Loan or any successor REO Mortgage Loan with respect thereto (including
any payoff of a Mortgage Loan by a mezzanine lender on behalf of the subject
Borrower if and as set forth in the related intercreditor agreement).
"Primary Collateral": With respect to any Cross-Collateralized
Mortgage Loan, that portion of the Mortgaged Property designated as directly
securing such Cross-Collateralized Mortgage Loan and excluding any Mortgaged
Property as to which the related lien may only be foreclosed upon by exercise of
the cross-collateralization provisions of such Cross-Collateralized Mortgaged
Loan.
"Primary Servicer": Nationwide or any successor thereto or Principal
Global Investors, LLC or any successor thereto, as applicable, appointed as
provided in the Nationwide Primary Servicing Agreement or PGI Primary Servicing
Agreement, respectively.
"Primary Servicing Agreement": Each of the Nationwide Primary
Servicing Agreement and the PGI Primary Servicing Agreement, as applicable.
"Primary Servicing Fee": With respect to a Primary Servicer, the
primary servicing fee that is payable to such Primary Servicer under the terms
of the related Primary Servicing Agreement.
"Primary Servicing Office": The office of a Master Servicer or the
Special Servicer, as the context may require, that is primarily responsible for
such party's servicing obligations hereunder.
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"Principal Balance Certificate": Any of the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class AM-A, Class A-J,
Class AJ-A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates.
"Principal Balance REMIC III Regular Interest": Any of the Principal
Balance Certificates.
"Principal Distribution Amount": With respect to any Distribution
Date other than the Final Distribution Date, an amount (which shall in no event
be less than zero) equal to the excess, if any, of:
(I) the sum of:
(A) the aggregate (without duplication) of the following
(such aggregate of the following amounts described below in this clause
(A), the "Unadjusted Principal Distribution Amount" for such Distribution
Date):
(i) all payments of principal (including Principal
Prepayments), including any such payments on Corrected Mortgage
Loans, Received by the Trust with respect to the Pooled 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 (including any
Unliquidated Advance in respect of a prior 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 occurring subsequent to
the calendar month in which such Distribution Date occurs,
(ii) the aggregate of the principal portions of all
Monthly Payments due in respect of the Pooled Mortgage Loans for
their respective Due Dates occurring in the month in which such
Distribution Date occurs, that were Received by the Trust (other
than as part of a Principal Prepayment) prior to the related
Collection Period (or, in the case of any Pooled Mortgage Loan for
which the Due Date occurs on a day that is after the seventh day of
each month, that were Received by the Trust in the calendar month
prior to the calendar month in which the related Distribution Date
occurs but are due during the calendar month in which the related
Distribution Date occurs),
(iii) the aggregate of all Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds Received by the Trust
with respect to any Pooled Mortgage Loans during the related
Collection Period that were identified and applied by the applicable
Master Servicer as recoveries of principal (whether as Principal
Prepayments or otherwise) of such Pooled Mortgage Loans in
accordance with Section 1.03, in each case net of any portion of
such proceeds that represents a Late Collection of principal due on
or before the Cut-off Date or for which a P&I Advance (including an
Unliquidated Advance in respect of a prior P&I Advance) was
previously made under this Agreement for a prior Distribution Date,
(iv) 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 applicable
Master Servicer as recoveries of principal (whether as Principal
Prepayments or otherwise) of the related REO Pooled Mortgage Loans
in accordance with Section 1.03, in each case net of any portion of
such proceeds and/or revenues that represents a Late Collection of
principal due on or before the Cut-off Date or for which a P&I
Advance (including an Unliquidated Advance in respect of a prior P&I
Advance) was previously made under this Agreement for a prior
Distribution Date, and
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(v) the respective principal portions of all P&I
Advances made under this Agreement in respect of the Pooled Mortgage
Loans and any REO Pooled Mortgage Loans with respect to such
Distribution Date;
(B) the aggregate amount of any collections received on or
in respect of the Pooled Mortgage Loans during the related Collection
Period that, in each case, represents a delinquent amount as to which an
Advance had been made, which Advance was previously reimbursed during the
Collection Period for a prior Distribution Date as part of a
Workout-Delayed Reimbursement Amount for which a deduction was made under
clause (II)(B) below with respect to such Distribution Date; and
(C) the aggregate amount of any collections received on or
in respect of the Pooled Mortgage Loans during the related Collection
Period that, in each case, is identified and applied by the applicable
Master Servicer (in accordance with Section 1.03) as a recovery of an
amount previously determined (in a Collection Period for a prior
Distribution Date) to have been a Nonrecoverable Advance and for which a
deduction was made under clause (II)(C) below with respect to a prior
Distribution Date; less
(II) the sum of:
(A) if any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds were received with respect to any Pooled Mortgage
Loan or REO Property, and/or any Pooled Mortgage Loan or REO Property is
otherwise liquidated (including by means of a Final Recovery Determination
or the receipt of a full, partial or discounted payoff), during the
related Collection Period, an amount equal to any Workout Fees or
Liquidation Fees with respect to each such Pooled Mortgage Loan or REO
Property, as the case may be, that were paid hereunder from a source other
than related Default Charges during the related Collection Period;
(B) the aggregate amount of Workout-Delayed Reimbursement
Amounts (and Advance Interest thereon) that were reimbursed or paid during
the related Collection Period to one or more of the Master Servicers, the
Special Servicer and the Trustee from principal advances and collections
on the Mortgage Pool pursuant to subsection (iii) of Section 3.05(a)(II);
and
(C) the aggregate amount of Nonrecoverable Advances (and
Advance Interest thereon) that were reimbursed or paid during the related
Collection Period to one or more of the Master Servicers, the Special
Servicer and the Trustee during the related Collection Period from
principal advances and collections on the Mortgage Pool pursuant to
subsection (iv) of Section 3.05(a)(II).
provided, however, that the foregoing provisions of this definition shall be
construed in a manner that is consistent with Section 3.02(d).
For purposes of determining the portion of the Principal
Distribution Amount that is attributable to Loan Group 1 or Loan Group 2 in
connection with any Distribution Date, any reduction in the Principal
Distribution Amount that is described in any of clauses (II)(A), (B) and/or (C)
above that arises from a particular Pooled Mortgage Loan will be applied, first
as a reduction of the portion of the Principal Distribution Amount that is
otherwise attributable to the Loan Group that includes such Pooled Mortgage Loan
(until such portion, net of all subtractions pursuant to clauses (II)(A), (B)
and (C) above arising from Pooled Mortgage Loans in such Loan Group, is equal to
zero), and, then, as a reduction of the portion of the Principal Distribution
Amount that is otherwise attributable to the other Loan Group (until such
portion, net of all such subtractions pursuant to clauses (II)(A), (B) and (C)
above arising from Pooled Mortgage Loans in such Loan Group and all subtractions
pursuant to this clause, is equal to zero); and any increase in the Principal
Distribution Amount that is described in either of clauses (II)(B) and/or (C)
above that arises from a recovery of a previously reimbursed amount related to a
particular Pooled Mortgage Loan will be applied, first, if the attributable
portion of the Principal Distribution Amount for the unrelated Loan Group (that
is, the Loan Group that does not include such Pooled Mortgage Loan) was
previously reduced on account of such particular Pooled Mortgage Loan or any
other Pooled Mortgage Loan in
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the same Loan Group as such particular Pooled Mortgage Loan, as an increase in
the portion of the Principal Distribution Amount that is otherwise attributable
to the Loan Group that does not include such Pooled Mortgage Loan (until the
cumulative amount of such increases under this clause is equal to the cumulative
reductions to the attributable portion of the Principal Distribution Amount for
that Loan Group on account of Pooled Mortgage Loans not included in such Loan
Group), and, then, as an increase in the portion of the Principal Distribution
Amount that is otherwise attributable to the Loan Group that includes such
Pooled Mortgage Loan.
With respect to the Final Distribution Date, the "Principal
Distribution Amount" shall equal the aggregate Stated Principal Balance of the
entire Mortgage Pool outstanding immediately prior to the Final Distribution
Date.
In no event shall any portion of any Excess Liquidation Proceeds
constitute a portion of the Principal Distribution Amount for any Distribution
Date.
"Principal Prepayment": Any payment of principal made by the
Borrower on a Mortgage Loan which is received in advance of its scheduled Due
Date and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium, Yield Maintenance Charge, Post-ARD Additional Interest
and/or 0000-0000 Xxxxxx Xxxxxx Additional Interest that may have been collected)
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
"Private Placement Memorandum": The final Private Placement
Memorandum dated December 13, 2007, relating to certain classes of the
Non-Registered Certificates delivered by the Depositor to Bear, Xxxxxxx & Co.
Inc. and Xxxxxx Xxxxxxx & Co. Incorporated as of the Closing Date.
"Privileged Person": Any of the following: a party to this
Agreement, an Underwriter, a Pooled Mortgage Loan Seller, the Controlling Class
Representative, a Rating Agency, a designee of the Depositor, a
Certificateholder and any Person who certifies to the Certificate Administrator
in the form of Exhibit K-1 hereto or Exhibit K-2 hereto, as applicable (which
form shall also be located on, and may be submitted electronically via, the
Certificate Administrator's internet website), that such Person is either a
Certificate Owner or a prospective purchaser of a Certificate or any interest
therein.
"Prospectus": The Base Prospectus and the Prospectus Supplement,
together.
"Prospectus Supplement": That certain prospectus supplement dated
December 13, 2007, relating to the Registered Certificates, that is a supplement
to the Base Prospectus.
"PTCE": Prohibited Transaction Class Exemption.
"PTE": Prohibited Transaction Exemption.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Pooled Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Pooled Mortgage Loan (or the related REO Pooled Mortgage Loan)
as of the date of purchase, (b) all accrued and unpaid interest on such Pooled
Mortgage Loan (or the related REO Pooled Mortgage Loan) at the related Mortgage
Rate (in the case of a Non-Trust-Serviced Pooled Mortgage Loan, net of the rate
at which master or similar servicing and administrative fees payable under the
related Non-Trust Servicing Agreement accrue) to, but not including, the Due
Date occurring in the Collection Period (or, in the case of any Pooled Mortgage
Loan for which the Due Date occurs on a day that is after the seventh day of
each month, the Due Date occurring in the month in which such Collection Period
ends) during which the applicable purchase or repurchase occurs (exclusive,
however, of any portion of such accrued but unpaid interest that represents
Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date, Post-ARD Additional Interest or, in the case of the 8118-8133
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Xxxxxx Street Pooled Mortgage Loan, any 0000-0000 Xxxxxx Xxxxxx Additional
Interest), (c) all related unreimbursed Servicing Advances (together with
Unliquidated Advances in respect of prior Servicing Advances) and all related
Servicing Advances (without duplication with Unliquidated Advances described in
the immediately preceding parenthetical clause) that were previously reimbursed
out of collections on other Pooled Mortgage Loans and/or REO Properties relating
to other Pooled Mortgage Loans, if any, (d) all accrued and unpaid Advance
Interest with respect to any related Advances, and (e) solely in the case of a
purchase, repurchase or substitution, as applicable, by a Pooled Mortgage Loan
Seller pursuant to the related Pooled Mortgage Loan Purchase Agreement or a
purchase of the HRC Portfolio 3 Pooled Mortgage Loan, the HRC Portfolio 1 Pooled
Mortgage Loan or the HRC Portfolio 2 Pooled Mortgage Loan by the related
Non-Pooled Subordinate Noteholder pursuant to the related Mortgage Loan Group
Intercreditor 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 outstanding Additional Trust Fund Expenses with respect to such Pooled
Mortgage Loan (or REO Property) and (ii) to the extent not otherwise included in
the amount described in clause (c) or clause (e) of this definition, any costs
and expenses incurred by a Master Servicer, a Special Servicer, the Trustee or
an agent of any of them (on behalf of the Trust) in enforcing the obligation, if
any, of a Pooled Mortgage Loan Seller to repurchase or replace such Mortgage
Loan or REO Property.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer" or "QIB": A "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Mortgage": A qualified mortgage within the meaning of
Section 860G(a)(3) of the Code.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Pooled Mortgage Loan as contemplated by Section 2.03,
any other mortgage loan which, on the date of substitution: (i) has an
outstanding Stated Principal Balance, after application of all scheduled
payments of principal and interest due during or prior to the month of
substitution, not in excess of the Stated Principal Balance of the Defective
Pooled Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs; (ii) has a fixed Mortgage Rate that is not less than, and
not more than one percentage point in excess of, the Mortgage Rate of the
Defective Pooled Mortgage Loan; (iii) has the same monthly Due Date as, and a
grace period for delinquent Monthly Payments that is no longer than, the Due
Date and grace period, respectively, of the Defective Pooled Mortgage Loan; (iv)
accrues interest on the same Interest Accrual Basis as the Defective Pooled
Mortgage Loan; (v) has a remaining term to stated maturity not greater than, and
not more than one year less than, that of the Defective Pooled Mortgage Loan,
(vi) has a Stated Maturity Date not later than two years prior to the Rated
Final Distribution Date; (vii) has a then current loan-to-value ratio not higher
than, and a then current debt service coverage ratio not lower than, the
loan-to-value ratio and debt service coverage ratio, respectively, of the
Defective Pooled Mortgage Loan as of the Closing Date; (viii) has comparable
prepayment restrictions to those of the Defective Pooled Mortgage Loan; (ix)
will comply, as of the date of substitution, with all of the representations
relating to the Defective Pooled Mortgage Loan set forth in or made pursuant to
the related Pooled Mortgage Loan Purchase Agreement; (x) has a Phase I
Environmental Assessment relating to the related Mortgaged Property in its
Servicing File, which Phase I Environmental Assessment will evidence that there
is no material adverse environmental condition or circumstance at the related
Mortgaged Property for which further remedial action may be required under
applicable law; and (xi) constitutes a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code (as evidenced by an Opinion of
Counsel provided by the related Pooled Mortgage Loan Seller at its expense);
provided, however, that if more than one mortgage loan is to be substituted for
any Defective Pooled
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Mortgage Loan, then all such proposed Replacement Pooled Mortgage Loans shall,
in the aggregate, satisfy the requirement specified in clause (i) of this
definition and have a weighted average remaining term to stated maturity that
satisfies the condition described in clause (v) above and each such proposed
Replacement Pooled Mortgage Loan shall, individually, satisfy each of the
requirements specified in clauses (ii) through (iv) and clauses (vi) through
(xi) of this definition; and provided, further, that no mortgage loan shall be
substituted for a Defective Pooled Mortgage Loan unless (a) such prospective
Replacement Pooled Mortgage Loan shall be acceptable to the Controlling Class
Representative (or, if there is no Controlling Class Representative then
serving, to the Holders of Certificates representing a majority of the Voting
Rights allocated to the Controlling Class), in its (or their) sole discretion,
(b) each Rating Agency for the Rated Certificates shall have confirmed in
writing to the Trustee that such substitution will not in and of itself result
in an Adverse Rating Event with respect to any Class of Rated Certificates (such
written confirmation to be obtained by the related Pooled Mortgage Loan Seller
effecting the substitution) and (c) the related Pooled Mortgage Loan Seller (at
its expense) has delivered or caused to have been delivered to the Trustee an
Opinion of Counsel to the effect that the substitution of such mortgage loan
would not result in an Adverse REMIC Event with respect to any REMIC Pool. When
a Qualifying Substitute Mortgage Loan is substituted for a Defective Pooled
Mortgage Loan, the applicable Pooled Mortgage Loan Seller shall certify that the
Mortgage Loan meets all of the requirements of the above definition and shall
send such certification to the Trustee.
"Rated Certificate": Any of the Certificates to which a rating has
been assigned by a Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": With respect to each Class of Rated
Certificates, the Distribution Date in June 2050.
"Rating Agency": With respect to (i) any Class of Rated
Certificates, each of S&P, Fitch and DBRS, and (ii) any provision of this
Agreement relating to any Serviced Non-Pooled Mortgage Loan in which any
Non-Pooled Pari Passu Companion Loan Securities evidence interests or by which
they are otherwise backed or secured, each rating agency then rating any related
class of such Non-Pooled Pari Passu Companion Loan Securities or its respective
successors in interest.
"Realized Loss": With respect to:
(1) each Pooled Mortgage Loan as to which a Final Recovery
Determination has been made (or any related successor REO Pooled Mortgage
Loan as to which a Final Recovery Determination has been made as to the
related REO Property), and with respect to each Pooled Mortgage Loan that
is a Corrected Mortgage Loan on which all amounts have been fully paid
under the terms of such Corrected Mortgage Loan (as it may have been
modified), an amount (not less than zero) equal to the excess, if any, of
(a) the sum of (i) the unpaid principal balance of such Pooled Mortgage
Loan or REO Pooled Mortgage Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery
Determination was made or the final payment was made, as the case may be,
plus (ii) without taking into account the amount described in subclause
(1)(b) of this definition, all accrued but unpaid interest (exclusive,
however, of any portion of such accrued but unpaid interest that
represents Default Interest or, in the case of an ARD Mortgage Loan after
its Anticipated Repayment Date, Post-ARD Additional Interest or, in the
case of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, any 0000-0000
Xxxxxx Xxxxxx Additional Interest) on such Pooled Mortgage Loan or such
REO Pooled Mortgage Loan, as the case may be, to but not including the Due
Date in the Collection Period in which the Final Recovery Determination
was made or such final payment was made, as the case may be, plus (iii)
without duplication with amounts included under another subclause above,
all related unreimbursed Servicing Advances (together with Unliquidated
Advances in respect of prior Servicing Advances) and unpaid Liquidation
Expenses, plus (iv) the amount of any and all related Special Servicing
Fees, Liquidation Fees and/or Workout Fees with respect to such Mortgage
Loan or successor REO Mortgage Loan, to the extent not previously
reflected as Realized Loss with respect to such Mortgage Loan or successor
REO Mortgage Loan, over (b) all payments and proceeds, if any, Received by
the Trust in respect of such Pooled Mortgage Loan or, to the extent
allocable to
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such REO Pooled Mortgage Loan, the related REO Property, as the case may
be, during the Collection Period in which such Final Recovery
Determination was made or such final payment was made, as the case may be;
(2) each Pooled Mortgage Loan as to which any portion of
the principal or previously accrued interest payable thereunder or any
Unliquidated Advance was canceled in connection with a bankruptcy or
similar proceeding involving the related Borrower or a modification,
extension, waiver or amendment of such Mortgage Loan granted or agreed to
by the applicable Master Servicer or the applicable Special Servicer
pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, by the related Non-Trust Master Servicer or the related
Non-Trust Special Servicer pursuant to the related Non-Trust 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, Post-ARD Additional Interest and, in the case
of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, any 0000-0000 Xxxxxx
Xxxxxx Additional Interest) or Unliquidated Advance so canceled; and
(3) each Pooled 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 Borrower or a modification, extension, waiver or amendment of such
Pooled Mortgage Loan granted or agreed to by the applicable Master
Servicer or the applicable Special Servicer pursuant to Section 3.20 (or,
in the case of a Non-Trust-Serviced Pooled Mortgage Loan, by the related
Non-Trust Master Servicer or the related Non-Trust Special Servicer
pursuant to the related Non-Trust Servicing Agreement), the amount of the
consequent reduction in the interest portion of each successive Monthly
Payment due thereon (on the related Due Date for the affected Monthly
Payment).
Notwithstanding the foregoing, any allocation of any Realized Loss
to any REMIC I Regular Interest, any REMIC II Regular Interest or any Class of
Principal Balance REMIC III Regular Interests, as the case may be, may occur (i)
in the case of any amount described in clause (1) or clause (2) above, solely
pursuant to, in accordance with and to the extent provided by the combination of
(x) the accounting for such amount that occurs under the definition of "Stated
Principal Balance" and (y) the operation of Section 4.04 of this Agreement and
(ii) in the case of any amount described in clause (3) above, solely pursuant
to, in accordance with and to the extent provided by the operation of Section
4.04 of this Agreement.
"Realized Loss Template": With respect to each Collection Period, a
completed template in the form of and containing the information provided for on
Exhibit E-4 hereto. The Realized Loss Template shall be in Excel format or such
other format as is reasonably acceptable to the Master Servicers, the Servicer
Report Administrator, the Trustee, the Certificate Administrator and the
Controlling Class Representative.
"Received by the Trust": In the case of: (a) a Non-Trust-Serviced
Pooled Mortgage Loan or any REO Property related thereto, received by the
Trustee (or the applicable Master Servicer on behalf of the Trustee), as holder
of the Mortgage Note for such Non-Trust-Serviced Pooled Mortgage Loan, on behalf
of the Trust; and (b) any Serviced Mortgage Loan or related REO Property,
received by a Master Servicer (or any Sub-Servicer thereof), a Special Servicer
(or any Sub-Servicer thereof) or the Trustee, as the case may be, on behalf of
the Trust and/or, in connection with a Serviced Mortgage Loan Group, the related
Serviced Non-Pooled Mortgage Loan Noteholder(s).
"Record Date": With respect to any Distribution Date and each Class
of Certificates, the last Business Day of the month immediately preceding the
month in which such Distribution Date occurs.
"Reference Rate": With respect to any Interest Accrual Period, the
applicable rate per annum set forth on the schedule attached hereto as Schedule
IV.
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"Registered Certificate": Any Certificate that has been the subject
of registration under the Securities Act. As of the Closing Date, the Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M, Class AM-A,
Class A-J and Class AJ-A Certificates constitute Registered Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (January 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": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of the United
States in reliance on Regulation S, a single global Certificate, or multiple
global Certificates collectively, in definitive, fully registered form without
interest coupon, each of which Certificates bears a Regulation S Legend.
"Regulation S Legend": With respect to any Class of Book-Entry
Non-Registered Certificates offered and sold outside the United States in
reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the Release Date
except pursuant to an exemption from the registration requirements of the
Securities Act.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum is equal to the "prime rate" published
in the "Money Rates" section of The Wall Street Journal, as such "prime rate"
may change from time to time. If The Wall Street Journal ceases to publish the
"prime rate", then the Trustee, in its sole discretion, shall select an
equivalent publication that publishes such "prime rate"; and if such "prime
rate" is no longer generally published or is limited, regulated or administered
by a governmental or quasi-governmental body, then the Trustee shall select a
comparable interest rate index. In either case, such selection shall be made by
the Trustee in its sole discretion and the Trustee shall notify the Master
Servicers and the Special Servicers in writing of its selection.
"Release Date": The date that is 40 days following the later of (i)
the Closing Date and (ii) the commencement of the initial offering of the
Non-Registered Certificates in reliance on Regulation S.
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to each Reporting Servicer (as set forth, with respect to each Master
Servicer, the Special Servicer, each Primary Servicer, the Certificate
Administrator and the Trustee, on Schedule VIII attached hereto). For
clarification purposes, multiple Reporting Servicers can have responsibility for
the same Relevant Servicing Criteria and some of the Servicing Criteria will not
be applicable to certain Reporting Servicers. With respect to a Servicing
Function Participant engaged by the Trustee, a Master Servicer, the Special
Servicer, a Primary Servicer, the Certificate Administrator or any Sub-Servicer,
the term "Relevant Servicing Criteria" may refer to a portion of the Relevant
Servicing Criteria applicable to the Trustee, a Master Servicer, the Special
Servicer, a Primary Servicer, the Certificate Administrator or such
Sub-Servicer.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860A through G of the Code.
"REMIC I": The segregated pool of assets designated as such in
Section 2.12(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and, in each such
case, designated as a "regular interest" (within the meaning of Section
860G(a)(1) of the Code) in REMIC I. The REMIC I Regular Interests have the
designations and terms provided for in Section 2.12.
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"REMIC I Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC I Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.12(f).
"REMIC I Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I
issued pursuant to this Agreement.
"REMIC II": The segregated pool of assets designated as such in
Section 2.14(a).
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in each such
case, designated as a "regular interest" (within the meaning of Section
860G(a)(1) of the Code) in REMIC II. The REMIC II Regular Interests have the
designations provided for in the Preliminary Statement hereto. The REMIC II
Regular Interests have the terms provided for in Section 2.14.
"REMIC II Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC II Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.14(f).
"REMIC II Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC II
issued pursuant to this Agreement.
"REMIC III": The segregated pool of assets designated as such in
Section 2.16(a).
"REMIC III Component": Any of the separate beneficial ownership
interests in REMIC III issued hereunder, evidenced by a Class of Interest Only
Certificates. The REMIC III Components have the designations provided for in the
Preliminary Statement hereto. The REMIC III Components have the terms provided
for in Section 2.16.
"REMIC III Regular Interest": Any of the Interest Only Certificates
and the Principal Balance Certificates. The REMIC III Regular Interests have the
terms provided for in Section 2.16.
"REMIC III Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC III
issued pursuant to this Agreement.
"REMIC Pool": Any of REMIC I, REMIC II or REMIC III.
"REMIC Provisions": The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and 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": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by a Special Servicer, pursuant to and for the benefit of the
Persons specified in Section 3.16(b), which shall be entitled (i) in the case of
the General Special Servicer, "Centerline Servicing Inc. [or the name of any
successor Special Servicer], as General Special Servicer, on behalf of LaSalle
Bank National Association [or the name of any successor Trustee], as Trustee, in
trust for the registered holders of Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18, and if
the account is established for the deposit of funds received in respect of one
or more REO Properties related to any Serviced Mortgage Loan Group for which it
is the applicable Special Servicer
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for the owners of the applicable Serviced Non-Pooled Mortgage Loans, as their
interests may appear, REO Account"; and (ii) in the case of any Loan Specific
Special Servicer appointed hereunder, "[name of Loan Specific Special Servicer],
as Loan Specific Special Servicer, on behalf of LaSalle Bank National
Association [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of the Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18, and for the
owners of [identify Serviced Non-Pooled Mortgage Loan(s)], as their interests
may appear, REO Account".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09 (or, in the case of any REO Property related to a
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related Non-Trust
Servicing Agreement).
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18 (or, in the case of any REO Property related to a
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related Non-Trust
Servicing Agreement).
"REO Extension": As defined in Section 3.16(a).
"REO Mortgage Loan": The successor mortgage loan to a Mortgage Loan
(including those deemed to be outstanding with respect to a Serviced Non-Pooled
Mortgage Loan or a Non-Trust-Serviced Pooled Mortgage Loan), which successor
mortgage loan is deemed for purposes hereof to be outstanding with respect to
each REO Property. Each REO Mortgage Loan shall be deemed to provide for monthly
payments of principal and/or interest equal to its Assumed Monthly Payment and
otherwise to have the same terms and conditions as its predecessor Mortgage Loan
(such terms and conditions to be applied without regard to the default on such
predecessor Mortgage Loan and the acquisition of the related REO Property on
behalf of the Trust or, if applicable, in the case of any REO Property related
to any Mortgage Loan Group, on behalf of the Trust and the respective holders of
the related Non-Pooled Mortgage Loan(s)). Each REO Mortgage Loan shall be deemed
to have an initial unpaid principal balance and Stated Principal Balance equal
to the unpaid principal balance and Stated Principal Balance, respectively, of
its predecessor Mortgage Loan as of the date of the related REO Acquisition. All
Monthly Payments (other than 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. In addition, all amounts payable or reimbursable to the
applicable Master Servicer, the applicable Special Servicer or the Trustee in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including any unpaid or unreimbursed Master Servicing Fees, Special
Servicing Fees and Advances (together with Unliquidated Advances in respect of
prior Advances), together with any related unpaid Advance Interest on such
Advances (other than Unliquidated Advances), shall continue to be payable or
reimbursable in the same priority and manner pursuant to Section 3.05(a) to the
applicable Master Servicer, the applicable Special Servicer, the Trustee or the
Trust, as the case may be, in respect of an REO Mortgage Loan.
"REO Pooled Mortgage Loan": An REO Mortgage Loan that relates to a
predecessor Pooled Mortgage Loan.
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders (and, in the case
of each such Mortgaged Property relating to a Serviced Mortgage Loan Group, also
on behalf of the related Serviced Non-Pooled Mortgage Loan Noteholder(s))
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; provided that a Mortgaged Property that secures a
Non-Trust-Serviced Pooled Mortgage Loan shall constitute an REO Property if and
when it is acquired under the related Non-Trust Servicing Agreement for the
benefit of the Trustee as the holder of such Non-Trust-Serviced Pooled Mortgage
Loan and of the holder of the related Non-Pooled Mortgage Loan(s) 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 such Non-Trust-Serviced Pooled Mortgage Loan.
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"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property, other than any income,
profits or proceeds derived from the REO Disposition of such REO Property.
"REO Tax": As defined in Section 3.17(a).
"Replacement Pooled Mortgage Loan": Any Qualifying Substitute
Mortgage Loan that is substituted by a Pooled Mortgage Loan Seller for a
Defective Pooled Mortgage Loan as contemplated by Section 2.03.
"Reportable Event": As defined in Section 11.09.
"Reporting Servicer": Each Master Servicer, the Special Servicer and
any Servicing Function Participant (including the Primary Servicers, the
Certificate Administrator, the Trustee and each Sub-Servicer), as the case may
be.
"Request for Release": A request signed by a Servicing Officer of,
as applicable, a Master Servicer in the form of Exhibit C-1 attached hereto or a
Special Servicer in the form of Exhibit C-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(a).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to (i) in the case of
fidelity bond coverage provided by such insurance carrier, "A" by S&P, "A-" by
Fitch and "A" by DBRS (or, if not rated by DBRS, an equivalent rating (such as
those listed above for S&P and Fitch) by at least two nationally recognized
statistical rating organizations (which may include S&P, Fitch, AM Best and/or
Xxxxx'x)), (ii) in the case of a policy or policies of insurance issued by such
insurance carrier covering loss occasioned by the errors and omissions of
officers and employees, "A" by S&P, "A-" by Fitch and "A" by DBRS (or, if not
rated by DBRS, an equivalent rating (such as those listed above for S&P and
Fitch) by at least two nationally recognized statistical rating organizations
(which may include S&P, Fitch, AM Best and/or Xxxxx'x)), and (iii) in the case
of any other insurance coverage provided by such insurance carrier, "A" by S&P,
"A-" by Fitch and "A" by DBRS (or, if not rated by DBRS, an equivalent rating
(such as those listed above for S&P and Fitch) by at least two nationally
recognized statistical rating organizations (which may include S&P, Fitch, AM
Best and/or Xxxxx'x)); provided, however, that (A) an insurance carrier shall be
deemed to have the applicable claims-paying ability ratings set forth above if
the obligations of such insurance carrier under the related insurance policy are
guaranteed or backed in writing by an entity that has long-term unsecured debt
obligations that are rated not lower than the ratings set forth above or
claims-paying ability ratings that are not lower than the ratings set forth
above; and (B) an insurance carrier shall be deemed to have the applicable
claims-paying ability ratings set forth above if the Rating Agency whose rating
requirement set forth in clause (i) or (ii), as applicable, of this definition
has not been met has confirmed in writing that such insurance carrier would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (and, if the insurance carrier is an issuer of an insurance policy
relating to a Serviced Mortgage Loan Group or one or more Mortgaged Properties
that secured such Serviced Mortgage Loan Group, as applicable, the related
Serviced Mortgage Loan Group Controlling Party has confirmed in writing that
such insurance carrier is acceptable to such Serviced Mortgage Loan Group
Controlling Party), unless (with respect to policies maintained by Borrowers) a
higher claims-paying ability rating is required under any of the Mortgage Loan
Documents. In connection with insurance coverage related to one or more of the
PCFII Pooled Mortgage Loans or Nationwide Pooled Mortgage Loans or to the
obligations of the applicable Master Servicer (or a Primary Servicer serving on
its behalf) with respect to one or more PCFII Pooled Mortgage Loans or
Nationwide Pooled Mortgage Loans, insurance carried through Lloyd's of London
shall be deemed to have been issued by an insurer with the Required
Claims-Paying Ratings, so long as Lloyd's of London has a financial strength
rating of not less than "A-" by each of S&P and A.M. Best.
"Reserve Account": Any of the accounts established and maintained
pursuant to Section 3.03(d).
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"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Borrower to be held in escrow by or on behalf of the
mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Resolution Extension Period": As defined in Section 2.03(b).
"Responsible Officer": When used (a) with respect to the Certificate
Administrator, any Vice President, any Trust Officer, any Assistant Secretary or
any other officer of the Certificate Administrator 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)
with respect to the Trustee, any Vice President or Trust Officer thereof.
"Restricted Servicer Reports": Each of the CMSA Servicer Watch List,
the CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet,
the CMSA Financial File, the CMSA Property File and the CMSA Comparative
Financial Status Report.
"RRI Hotel Portfolio Intercreditor Agreement": The [amended and
restated intercreditor agreement, dated as of December 1, 2007,] between the
holders of the RRI Hotel Portfolio Pooled Mortgage Loan and the RRI Hotel
Portfolio Non-Pooled Pari Passu Companion Loans.
"RRI Hotel Portfolio Loan Group": The RRI Hotel Portfolio Pooled
Mortgage Loan and the RRI Hotel Portfolio Non-Pooled Pari Passu Companion Loans,
together.
"RRI Hotel Portfolio Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "RRI Hotel Portfolio".
"RRI Hotel Portfolio Non-Pooled Pari Passu Companion Loans": The
loans with an aggregate original principal balance of $386,000,000 that are
secured by the same Mortgage encumbering the RRI Hotel Portfolio Mortgaged
Property as the RRI Hotel Portfolio Pooled Mortgage Loan. The RRI Hotel
Portfolio Non-Pooled Pari Passu Companion Loans are not "Pooled Mortgage Loans"
or part of the Trust Fund, any REMIC Pool or any Grantor Trust Pool.
"RRI Hotel Portfolio Non-Pooled Pari Passu Companion Noteholder":
The holder of the promissory note evidencing any RRI Hotel Portfolio Non-Pooled
Pari Passu Companion Loan.
"RRI Hotel Portfolio Pooled Mortgage Loan": The Pooled Mortgage Loan
in the original principal amount of $78,000,000 that is secured by the RRI Hotel
Portfolio Mortgaged Property.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, a single global Certificate, or multiple
global Certificates collectively, registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, each
of which Certificates bears a Qualified Institutional Buyer CUSIP number and
does not bear a Regulation S Legend.
"S&P": 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 other parties hereto, 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.
References herein to "applicable rating category" (other than such references to
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"highest applicable rating category") shall, in the case of S&P, be deemed to
refer to such applicable rating category of S&P, without regard to any plus or
minus or other comparable rating qualification.
"Xxxxxxxx-Xxxxx Certification": As defined in Section 11.08.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement, chattel mortgage or similar document or instrument creating
in favor of the holder of such Mortgage a security interest in the personal
property constituting security for repayment of such Mortgage Loan.
"Senior REMIC III Regular Interest": Any of the Class A-1, Class
X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class X-1 or Class X-2
Certificates.
"Service(s)(ing)": In accordance with Regulation AB, the act of
servicing and administering the Pooled Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the commercial mortgage-backed market.
"Serviced Mortgage Loan": Any Mortgage Loan (including a Specially
Serviced Mortgage Loan, but excluding an REO Mortgage Loan) other than a
Non-Trust-Serviced Pooled Mortgage Loan (and any Non-Pooled Mortgage Loan that
is related to such Non-Trust-Serviced Pooled Mortgage Loan).
"Serviced Mortgage Loan Group": Each group of mortgage loans (if
any) that is part of a split loan structure that is principally serviced and
administered under this Agreement as identified in the Preliminary Statement
hereto. For the avoidance of doubt, only the GGP Portfolio Loan Group, the
Southlake Mall Loan Group, the Aviata Apartments Loan Group, the HRC Portfolio 3
Loan Group, the HRC Portfolio 1 Loan Group, the HRC Portfolio 2 Loan Group and
the Circuit City San Xxxxxx Loan Group constitute Serviced Mortgage Loan Groups.
"Serviced Mortgage Loan Group Controlling Party": In connection with
a Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled
Subordinate Loans, the holder(s) of the related Mortgage Loans that constitute
the "controlling lender" or "directing lender", or are otherwise designated as
the noteholders whose exclusive consent or consultation is required as a
condition to various actions proposed to be taken by the servicer of such
Mortgage Loan Group, if and as contemplated by the related Mortgage Loan Group
Intercreditor Agreement. Such holders are the GGP Portfolio Controlling Party,
the Aviata Apartments Controlling Party and the Circuit City San Xxxxxx
Controlling Party.
"Serviced Non-Pooled Mortgage Loan": Each of the mortgage loans (if
any), other than a Pooled Mortgage Loan, that is part of a split loan structure
that is principally serviced and administered under this Agreement as identified
in the Preliminary Statement hereto. For the avoidance of doubt, only the GGP
Portfolio Non-Pooled Subordinate Loan, the Southlake Mall Non-Pooled Pari Passu
Companion Loans, the Aviata Apartments Non-Pooled Subordinate Loan, the HRC
Portfolio 3 Non-Pooled Subordinate Loan, the HRC Portfolio 1 Non-Pooled
Subordinate Loan, the HRC Portfolio 2 Non-Pooled Subordinate Loan and the
Circuit City San Xxxxxx Non-Pooled Subordinate Loan constitute Serviced
Non-Pooled Mortgage Loans hereunder.
"Serviced Non-Pooled Mortgage Loan Noteholder": The holder of the
promissory note evidencing any Serviced Non-Pooled Mortgage Loan.
"Serviced Non-Pooled Pari Passu Companion Loan": Each of the
mortgage loans (if any), other than a Pooled Mortgage Loan, that is part of a
split loan structure that is principally serviced and administered under this
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Agreement, is secured by the same Mortgage encumbering a Pooled Mortgage Loan
and is pari passu in right of payment with that Pooled Mortgage Loan. The
Serviced Non-Pooled Pari Passu Companion Loans are not "Pooled Mortgage Loans"
or part of the Trust Fund, any REMIC Pool or any Grantor Trust Pool. For the
avoidance of doubt, only the Southlake Mall Non-Pooled Pari Passu Companion Loan
constitutes a Serviced Non-Pooled Pari Passu Companion Loan under this
Agreement.
"Serviced Non-Pooled Pari Passu Companion Loan Noteholder": The
holder of the promissory note evidencing any Serviced Non-Pooled Pari Passu
Companion Loan.
"Serviced Non-Pooled Subordinate Loan": Each of the mortgage loans
(if any), other than a Pooled Mortgage Loan, that is part of a split loan
structure that is principally serviced and administered under this Agreement, is
secured by the same Mortgage encumbering a Pooled Mortgage Loan and is
subordinate in right of payment with that Pooled Mortgage Loan. The Serviced
Non-Pooled Subordinate Loans are not "Pooled Mortgage Loans" or part of the
Trust Fund, any REMIC Pool or any Grantor Trust Pool. For the avoidance of
doubt, only the GGP Portfolio Non-Pooled Subordinate Loan, the Aviata Apartments
Non-Pooled Subordinate Loan, the HRC Portfolio 3 Non-Pooled Subordinate Loan,
the HRC Portfolio 1 Non-Pooled Subordinate Loan, the HRC Portfolio 2 Non-Pooled
Subordinate Loan and the Circuit City San Xxxxxx Non-Pooled Subordinate Loan
constitute Serviced Non-Pooled Subordinate Loans under this Agreement.
"Serviced Non-Pooled Subordinate Noteholder": The holder of a
Serviced Non-Pooled Subordinate Loan.
"Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan that is a
Serviced Mortgage Loan.
"Servicer Report Administrator": Xxxxx Fargo Bank, National
Association as a Master Servicer (without regard to the final sentence of the
definition of "Master Servicer") or any successor thereto appointed as provided
herein.
"Servicer Report Administrator Fee": With respect to each Pooled
Mortgage Loan and REO Pooled Mortgage Loan, the fee designated as such and
payable to the Servicer Report Administrator pursuant to Section 8.05(a).
"Servicer Report Administrator Fee Rate": Five ten-thousands of one
percent (0.0005%) per annum.
"Servicing Account": The account or accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses, including reasonable attorneys' fees and
expenses, incurred or to be incurred, as the context requires, by the applicable
Master Servicer or the applicable Special Servicer (or, if applicable, the
Trustee) in connection with the servicing of a Serviced Mortgage Loan (or, in
the limited circumstances set forth in Section 3.01(g), in connection with the
servicing of a Non-Trust-Serviced Pooled Mortgage Loan) as to which a default,
delinquency or other unanticipated event has occurred or is imminent, or in
connection with the administration of any Administered REO Property, including:
(1) any such costs and expenses associated with (a)
compliance with the obligations of the applicable Master Servicer and/or
the applicable Special Servicer set forth in Sections 2.03, 3.03(c) and
3.09, (b) the preservation, insurance, restoration, protection and
management of either a Mortgaged Property securing a Serviced Mortgage
Loan or an Administered REO Property, including the cost of any "force
placed" insurance policy purchased by the applicable Master Servicer or
the applicable Special Servicer to the extent such cost is allocable to a
particular Mortgaged Property that the applicable Master Servicer or
Special Servicer is required to cause to be insured pursuant to Section
3.07(a), (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds in respect of any such Serviced Mortgage Loan or any
Administered REO Property, (d) any enforcement or judicial proceedings
with respect to any such Mortgage Loan, including foreclosures and similar
proceedings, (e) the operation, management, maintenance and liquidation of
any Administered REO Property,
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(f) obtaining any Appraisal required to be obtained hereunder, and (g) UCC
filings (to the extent that the costs thereof are not reimbursed by the
related Borrower), and
(2) the reasonable and direct out-of-pocket travel
expenses incurred by the applicable Special Servicer in connection with
performing inspections pursuant to Section 3.12(a);
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include (A) allocable overhead of a Master Servicer, a Special
Servicer or the Trustee, as the case may be, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, (B) costs incurred by or on
behalf of any such party hereto or any Affiliate thereof in connection with its
purchase of any Mortgage Loan or REO Property pursuant to any provision of this
Agreement or any intercreditor agreement or similar agreement or (C) costs or
expenses expressly required under this Agreement to be borne by a Master
Servicer, a Special Servicer or the Trustee.
"Servicing Advances" shall also include, however, any other
expenditure which is expressly designated as a "Servicing Advance" herein. All
Emergency Advances made by a Master Servicer at the direction of the applicable
Special Servicer hereunder shall be considered "Servicing Advances" for the
purposes hereof.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB, as such may be amended from time to time.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File, but including originals or copies of all
management agreements which are not covered by clause (xvii) of the definition
of "Mortgage File") that are in the possession or under the control of, or that
are required (pursuant to the applicable Pooled Mortgage Loan Purchase
Agreement, this Agreement or otherwise) to be delivered and actually have been
delivered to, as the context may require, the applicable Master Servicer or the
applicable Special Servicer and relating to the origination and servicing of any
Mortgage Loan or the administration of any REO Property and reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan,
including any documents delivered by a Pooled Mortgage Loan Seller as described
in clause (i) of Section 2.01(f).
"Servicing Function Participant": Any Person, other than a Master
Servicer and the Special Servicer, that, within the meaning of Item 1122 of
Regulation AB, is primarily responsible for performing activities addressed by
the Servicing Criteria, unless such Person's activities relate only to 5% or
less of the Pooled Mortgage Loans (based on their Stated Principal Balance) or
the applicable servicer takes responsibility for the activities of such person
in accordance with SEC telephone interpretation 17.06 under Regulation AB. For
clarification purposes, the Trustee, the Primary Servicers and the Certificate
Administrators are each a Servicing Function Participant.
"Servicing Officer": Any officer or employee of a Master Servicer or
a Special Servicer involved in, or responsible for, the administration and
servicing of Mortgage Loans, whose name and specimen signature appear on a list
of servicing officers furnished by such party to the Certificate Administrator,
the Trustee and the Depositor on the Closing Date, as such list may thereafter
be amended from time to time by such Master Servicer or such Special Servicer,
as the case may be.
"Servicing Released Bid": As defined in Section 7.01(c).
"Servicing Retained Bid": As defined in Section 7.01(c).
"Servicing Return Date": With respect to any Corrected Mortgage
Loan, the date that servicing thereof is returned by the Special Servicer to the
applicable Master Servicer pursuant to Section 3.21(a).
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"Servicing Standard": With respect to each of the Master Servicers
and each of the Special Servicers, 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 in the best interests and
for the benefit of the Certificateholders (or, in the case of a Serviced
Mortgage Loan Group, for the benefit of the Certificateholders and the related
Serviced Non-Pooled Mortgage Loan Noteholders) (as determined by the applicable
Master Servicer or the applicable Special Servicer, as the case may be, in its
good faith and reasonable judgment), as a collective whole (it being understood,
in the case of a Serviced Mortgage Loan Group containing any Non-Pooled
Subordinate Loan, that the interests of the related Non-Pooled Subordinate
Noteholder are junior promissory notes, subject to the terms and conditions of
the related Mortgage Loan Group Intercreditor Agreement), in accordance with
applicable law and the terms of this Agreement, and the respective Mortgage
Loans (including, with respect to a Serviced Mortgage Loan Group, the related
Mortgage Loan Group Intercreditor Agreement, as applicable) and, to the extent
consistent with the foregoing, in accordance with the following standards:
(a) with the same care, skill, prudence and diligence as
it services and administers comparable mortgage loans and manages real
properties on behalf of third parties or on behalf of itself, whichever is
the higher standard with respect to mortgage loans and REO properties that
are comparable to those for which it is responsible hereunder, giving due
consideration to customary and usual standards of practice utilized by
prudent institutional commercial mortgage loan servicers under comparable
circumstances;
(b) with a view to: (i) in the case of a Master Servicer,
the timely collection of all scheduled payments of principal and interest,
including Balloon Payments, under the Serviced Mortgage Loans and the full
collection of all Prepayment Premiums and Yield Maintenance Charges that
may become payable under the Serviced Mortgage Loans, and (ii) in the case
of the applicable Special Servicer and any Serviced Mortgage Loan that is
(A) a Specially Serviced Mortgage Loan or (B) a Serviced Mortgage Loan as
to which the related Mortgaged Property has become an Administered REO
Property, the maximization of recovery on such Mortgage Loan to the
Certificateholders (or, in the case of a Serviced Mortgage Loan Group, to
the Certificateholders and the related Serviced Non-Pooled Mortgage Loan
Noteholders, as applicable), as a collective whole (it being understood,
in the case of a Serviced Mortgage Loan Group containing any Non-Pooled
Subordinate Loan, that the interests of the related Non-Pooled Subordinate
Noteholder are junior promissory notes, subject to the terms and
conditions of the related Mortgage Loan Group Intercreditor Agreement), 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, in the case of a Serviced
Mortgage Loan Group, to the Certificateholders and the related Serviced
Non-Pooled Mortgage Loan Noteholder, as applicable), as a collective
whole, to be performed at a rate determined by the applicable Special
Servicer but in no event less than the related Net Mortgage Rate (or, in
the case of a Serviced Mortgage Loan Group, less than the weighted average
of the Net Mortgage Rates for the Mortgage Loans in such Serviced Mortgage
Loan Group)); and
(c) without regard to (i) any known relationship that the
applicable Master Servicer or the applicable Special Servicer, as the case
may be, or any of its Affiliates may have with a related Borrower, a
Mortgage Loan Seller or any other party to this Agreement, (ii) the
ownership of any Certificate or any interest in any other Mortgage Loan in
a Mortgage Loan Group by the applicable Master Servicer or the applicable
Special Servicer, as the case may be, or any of its Affiliates, (iii) the
obligation of the applicable Master Servicer to make Advances or otherwise
to incur servicing expenses with respect to any Serviced Mortgage Loan or
Administered REO Property (or, if applicable, to make P&I Advances or (to
the limited extent set forth herein) Servicing Advances with respect to a
Non-Trust-Serviced Pooled Mortgage Loan), (iv) the obligation of the
applicable Special Servicer to make, or direct the applicable Master
Servicer to make, Servicing Advances (including Emergency Advances) or
otherwise to incur servicing expenses with respect to any Serviced
Mortgage Loan or Administered REO Property, (v) the right of the
applicable Master Servicer or the applicable Special Servicer, as the case
may be, or any of its Affiliates to receive reimbursement of costs, or the
sufficiency of any compensation payable to it, hereunder or with respect
to any particular transaction, (vi) any ownership, servicing and/or
management by the applicable Master Servicer or the applicable Special
Servicer, as the case may be, or any of its
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Affiliates, of any other mortgage loans or real property, (vii) the
ownership by the applicable Master Servicer or the applicable Special
Servicer, as the case may be, or any of its Affiliates of any other debt
owed by, or secured by ownership interests in, any of the Borrowers or any
Affiliate of a Borrower, and (viii) the obligations of the applicable
Master Servicer or the applicable Special Servicer, as the case may be, or
any of its Affiliates to repurchase any Pooled Mortgage Loan from the
Trust Fund, or to indemnify the Trust Fund, in any event as a result of a
Material Breach or a Material Document Defect;
provided that the foregoing standards shall apply with respect to a
Non-Trust-Serviced Pooled Mortgage Loan and any related REO Property only to the
extent that the applicable Master Servicer or the applicable Special Servicer
has any express duties or rights to grant consent with respect thereto pursuant
to this Agreement.
"Servicing Transfer Event": With respect to any Serviced Mortgage
Loan, the occurrence of any of the events described in clauses (a) through (h)
of the definition of "Specially Serviced Mortgage Loan".
"Sole Certificateholder(s)": Any Holder or group of Holders, as the
case may be, of 100% of the then outstanding Certificates.
"Southlake Mall Intercreditor Agreement": The intercreditor
agreement between the initial holders of the Southlake Mall Pooled Mortgage Loan
and the Southlake Mall Non-Pooled Pari Passu Companion Loan.
"Southlake Mall Loan Group": The Southlake Mall Pooled Mortgage Loan
and the Southlake Mall Non-Pooled Pari Passu Companion Loan, together.
"Southlake Mall Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "Southlake Mall".
"Southlake Mall Non-Pooled Pari Passu Companion Loan": The loan with
an original principal balance of $30,000,000 that is secured by the same
Mortgage encumbering the Southlake Mall Mortgaged Property as the Southlake Mall
Pooled Mortgage Loan. The Southlake Mall Non-Pooled Pari Passu Companion Loan is
not a "Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool or any
Grantor Trust Pool.
"Southlake Mall Non-Pooled Pari Passu Companion Noteholder": The
holder of the promissory note evidencing the Southlake Mall Non-Pooled Pari
Passu Companion Loan.
"Southlake Mall Pooled Mortgage Loan": The Pooled Mortgage Loan in
the original principal amount of $70,000,000 that is secured by the Southlake
Mall Mortgaged Property.
"Special Servicer": Each of the General Special Servicer and each
Loan Specific Special Servicer, as applicable.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan (other than any REO Property related to
a Non-Trust-Serviced Pooled Mortgage Loan), the fee designated as such and
payable to the applicable Special Servicer pursuant to the first paragraph of
Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan (other than any REO Property
related to a Non-Trust-Serviced Pooled Mortgage Loan), 0.25% per annum.
"Specially Designated Defaulted Pooled Mortgage Loan": A Serviced
Pooled Mortgage Loan that both (A) is a Specially Serviced Mortgage Loan and (B)
either (i) is delinquent 120 days or more with respect to any Balloon Payment or
60 days or more with respect to any other Monthly Payment, with such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any
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acceleration of payments under the related Mortgage and Mortgage Note, or (ii)
is a Pooled Mortgage Loan as to which the amounts due thereunder have been
accelerated following any other material default.
"Specially Designated Mortgage Loan Documents": With respect to any
Pooled Mortgage Loan, subject to Section 1.04, the following documents on a
collective basis:
(i) the original executed Mortgage Note or alternatively,
if the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, in each case
(unless the particular item has been sent for recording but has not been
returned from the applicable recording office) with evidence of recording
indicated thereon; provided that if such original Mortgage cannot be
delivered with evidence of recording thereon on or before the 90th day
following the Closing Date because of a delay caused by the public
recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, there shall
be delivered to the Trustee or a Custodian on its behalf a true and
correct copy of such Mortgage, together with (A) in the case of a delay
caused by the public recording office, an Officer's Certificate of the
applicable Pooled Mortgage Loan Seller stating that such original Mortgage
has been sent to the appropriate public recording official for recordation
or (B) in the case of an original Mortgage that has been lost after
recordation, a certification by the appropriate county recording office
where such Mortgage is recorded that such copy is a true and complete copy
of the original recorded Mortgage;
(iii) the original or a copy of any related Assignment of
Leases (if any such item is a document separate from the Mortgage), in
each case (unless the particular item has been sent for recording but has
not been returned from the applicable recorder) with evidence of recording
thereon;
(iv) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan (or,
if the policy has not yet been issued, an original or copy of a written
commitment "marked-up" at the closing of such Mortgage Loan, interim
binder or the pro forma title insurance policy, in each case evidencing a
binding commitment to issue such policy);
(v) if a material portion of the interest of the Borrower
in the related Mortgaged Property consists of a leasehold interest, the
original or a copy of the Ground Lease relating to such Mortgage Loan;
(vi) except in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, if any documents relating to, evidencing or constituting
Additional Collateral for such Mortgage Loan are in the form of a Letter
of Credit, the original of any such Letter of Credit (except that either
(x) the "Mortgage File" shall initially contain the original of such
Letter of Credit (and a copy of such Letter of Credit shall initially be
delivered to the applicable Master Servicer) and, thereafter, such
original shall be delivered to the applicable Master Servicer (with a copy
of such Letter of Credit to be maintained by the Trustee) with reasonable
promptness following request in connection with the applicable Master
Servicer's performance of its duties hereunder, or (y) the "Mortgage File"
shall initially contain a copy of such Letter of Credit and the original
of such Letter of Credit shall initially be delivered to the applicable
Master Servicer (or a Primary Servicer on its behalf) and, thereafter,
such original shall be maintained by such Master Servicer (or a Primary
Servicer on its behalf)); and
(vii) if the related Mortgaged Property is a hospitality
property that is subject to a franchise or similar arrangement, (a) an
original or a copy of any franchise or similar agreement and (b) either
(i) a signed copy of the comfort letter delivered by the franchisor or
similar person for the benefit of the holder of the Mortgage Loan in
connection with the Pooled Mortgage Loan Seller's origination or
acquisition of the Mortgage Loan, together with such instrument(s) of
notice or transfer (if any) as are necessary to transfer or assign to the
Trust or the Trustee the benefits of such comfort letter, or (ii) a copy
of the comfort letter delivered by the franchisor or similar person for
the benefit of the holder of the Mortgage Loan in connection with such
origination
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or acquisition of the Mortgage Loan, together with a signed copy or a fax
copy of a new comfort letter (in substantially the same form and substance
as the comfort letter delivered in connection with such origination or
acquisition) by the franchisor or similar person for the benefit of the
Trust or the Trustee (and, if a fax copy of a new comfort letter is
delivered, then the original copy shall be included in the "Mortgage File"
promptly following receipt thereof by the related Pooled Mortgage Loan
Seller).
"Specially Serviced Mortgage Loan": Any Serviced Mortgage Loan as to
which any of the following events has occurred:
(a) the related Borrower has failed to make when due any
Balloon Payment, and the Borrower has not delivered to the applicable
Master Servicer, on or before the due date of such Balloon Payment, a
written refinancing commitment from an acceptable lender and reasonably
satisfactory in form and substance to the applicable Master Servicer which
provides that such refinancing will occur within 120 days after the date
on which such Balloon Payment will become due (provided that such Mortgage
Loan shall immediately become a Specially Serviced Mortgage Loan if either
(x) such refinancing does not occur before the expiration of the time
period for refinancing specified in such binding commitment or (y) the
applicable Master Servicer is required to make a P&I Advance in respect of
such Mortgage Loan (or, in the case of any Serviced Non-Pooled Mortgage
Loan, in respect of the Pooled Mortgage Loan included in the same Serviced
Mortgage Loan Group) at any time prior to such a refinancing); or
(b) the related Borrower has failed to make when due any
Monthly Payment (other than a Balloon Payment) or any other payment (other
than a Balloon Payment) required under the related Mortgage Note or the
related Mortgage, which failure has continued unremedied for sixty (60)
days; or
(c) the applicable Master Servicer determines (in
accordance with the Servicing Standard) that a default in making any
Monthly Payment (other than a Balloon Payment) or any other material
payment (other than a Balloon Payment) required under the related Mortgage
Note or the related Mortgage is likely to occur in the foreseeable future,
and such default is likely to remain unremedied for at least sixty (60)
days beyond the date on which the subject payment will become due; or the
applicable Master Servicer determines (in accordance with the Servicing
Standard) that a default in making a Balloon Payment is likely to occur in
the foreseeable future, and such default is likely to remain unremedied
for at least sixty (60) days beyond the date on which such Balloon Payment
will become due (or, if the Borrower has delivered a written refinancing
commitment from an acceptable lender and reasonably satisfactory in form
and substance to the applicable Master Servicer which provides that such
refinancing will occur within 120 days following the date on which such
Balloon Payment will become due, such Master Servicer determines (in
accordance with the Servicing Standard) that (A) the Borrower is likely
not to make one or more Assumed Monthly Payments prior to such a
refinancing or (B) such refinancing is not likely to occur within 120 days
following the date on which such Balloon Payment will become due); or
(d) there shall have occurred a default (including, in the
applicable Master Servicer's or the Special Servicer's judgment, the
failure of the related Borrower to maintain any insurance required to be
maintained pursuant to the related Mortgage Loan Documents, unless such
default has been waived in accordance with Section 3.07 or Section 3.20
hereof) under the related Mortgage Loan Documents, other than as described
in clause (a), (b) or (c) above, that may, in the applicable Master
Servicer's or the applicable Special Servicer's good faith and reasonable
judgment, materially impair the value of the related Mortgaged Property as
security for such Mortgage Loan or otherwise materially and adversely
affect the interests of Certificateholders (or, in the case of any
Serviced Non-Pooled Mortgage Loan, the interests of the related Serviced
Non-Pooled Mortgage Loan Noteholder(s)), which default has continued
unremedied for the applicable cure period under the terms of such Mortgage
Loan (or, if no cure period is specified, 60 days); or
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(e) 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, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Borrower and such decree or
order shall have remained in force undischarged or unstayed for a period
of 60 days; or
(f) the related Borrower shall have consented to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to such Borrower or of or relating to all or
substantially all of its property; or
(g) the related Borrower shall have admitted in writing
its inability to pay its debts generally as they become due, filed a
petition to take advantage of any applicable insolvency or reorganization
statute, made an assignment for the benefit of its creditors, or
voluntarily suspended payment of its obligations; or
(h) the applicable Master Servicer or the applicable
Special Servicer shall have received notice of the commencement of
foreclosure or similar proceedings with respect to the related Mortgaged
Property;
provided that a Serviced Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, or at such time as such of the following as are applicable occur with
respect to the circumstances identified above that caused such Mortgage Loan to
be characterized as a Specially Serviced Mortgage Loan (and provided that no
other Servicing Transfer Event then exists):
(I) with respect to the circumstances described in clauses
(a) and (b) above, the related Borrower 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 Borrower or by reason of a
modification, waiver or amendment granted or agreed to by the applicable
Master Servicer or the applicable Special Servicer pursuant to Section
3.20);
(II) with respect to the circumstances described in clauses
(c), (e), (f), and (g) above, such circumstances cease to exist in the
good faith reasonable judgment, exercised in accordance with the Servicing
Standard, of the applicable Special Servicer;
(III) with respect to the circumstances described in clause
(d) above, such default is cured in the good faith reasonable judgment,
exercised in accordance with the Servicing Standard, of the applicable
Special Servicer; and
(IV) with respect to the circumstances described in clause
(h) above, such proceedings are terminated.
Notwithstanding the foregoing, if a Servicing Transfer Event exists
as contemplated above in this definition for any Mortgage Loan in a Serviced
Mortgage Loan Group, it shall be deemed to exist for the other Mortgage Loans in
such Serviced Mortgage Loan Group.
"Specially Serviced Pooled Mortgage Loan": A Serviced Pooled
Mortgage Loan that constitutes a Specially Serviced Mortgage Loan.
Notwithstanding anything herein to the contrary, in no event shall a
Non-Trust-Serviced Pooled Mortgage Loan constitute a Specially Serviced Pooled
Mortgage Loan hereunder.
"Startup Day": With respect to each REMIC Pool, the day designated
as such in Section 2.12(a) (in the case of REMIC I), Section 2.14(a) (in the
case of REMIC II) or Section 2.16(a) (in the case of REMIC III), as applicable.
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"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the related Mortgage Note (as in effect on the Closing Date
or, in the case of a Replacement Pooled Mortgage Loan, on the related date of
substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the applicable Master Servicer or Special Servicer
pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, by the related Non-Trust Master Servicer or the related Non-Trust
Special Servicer pursuant to the related Non-Trust Servicing Agreement) and, in
the case of an ARD Mortgage Loan, without regard to its Anticipated Repayment
Date.
"Stated Principal Balance": With respect to any Pooled Mortgage Loan
(and any successor REO Pooled Mortgage Loan with respect thereto), a principal
balance which (a) initially shall equal the unpaid principal balance thereof as
of the related Cut-off Date or, in the case of any Replacement Pooled Mortgage
Loan, as of the related date of substitution, in any event after application of
all payments of principal due thereon on or before such date, whether or not
received, and (b) shall be permanently reduced on each subsequent Distribution
Date (to not less than zero) by the sum of:
(i) that portion, if any, of the Unadjusted Principal
Distribution Amount for such Distribution Date that is attributable to
such Pooled Mortgage Loan (or successor REO Pooled Mortgage Loan); and
(ii) the principal portion of any Realized Loss incurred in
respect of such Pooled Mortgage Loan (or successor REO Pooled Mortgage
Loan) during the related Collection Period;
provided that, if a Liquidation Event occurs in respect of any Mortgage Loan or
REO Property, then the "Stated Principal Balance" of such Mortgage Loan or of
the related REO Pooled Mortgage Loan, as the case may be, shall be zero
commencing as of the close of business on the Distribution Date next following
the Collection Period in which such Liquidation Event occurred.
"Subordinate Note Custodial Account": As defined in Section 3.04(f).
"Sub-Servicer": Any Person with which a Master Servicer or a Special
Servicer has entered into a Sub-Servicing Agreement with respect to the Mortgage
Loans in accordance with the terms hereof.
"Sub-Servicing Agreement": The written contract between a Master
Servicer or a Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22. For the avoidance of doubt, the Primary Servicing
Agreement does not constitute a Sub-Servicing Agreement.
"Substitution Shortfall Amount": In connection with the substitution
of one or more Replacement Pooled Mortgage Loans for any Defective Pooled
Mortgage Loan, the amount, if any, by which the Purchase Price for such
Defective Pooled Mortgage Loan (calculated as if it were to be repurchased,
instead of replaced, on the relevant date of substitution), exceeds the initial
Stated Principal Balance or the initial aggregate Stated Principal Balance, as
the case may be, of such Replacement Pooled Mortgage Loan(s) as of the date of
substitution.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Administrator": WFB, in its capacity as tax administrator
hereunder, or any successor tax administrator appointed as herein provided.
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"Tax Administrator Fee": At any time when the Certificate
Administrator is not also the Tax Administrator, the portion of the Certificate
Administrator Fee payable to the Tax Administrator in an amount agreed to by the
Certificate Administrator and the Tax Administrator.
"Tax Matters Person": 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, pursuant to Section 10.01(b), be the
Holder of Certificates evidencing the largest Percentage Interest in the Class R
Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holder of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each REMIC Pool due to its classification as a REMIC under the REMIC
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 (including the Grantor Trust
Provisions) or any other governmental taxing authority under applicable state or
local tax laws.
"Termination Price": As defined in Section 9.01(a).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trust": The trust created hereby.
"Trust Fund": Collectively, all of the assets of all the REMIC Pools
and all the Grantor Trust Pools.
"Trustee": LaSalle, in its capacity as trustee hereunder, or any
successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Pooled Mortgage Loan and REO
Pooled Mortgage Loan, the fee designated as such and payable to the Trustee
pursuant to Section 8.05(a).
"Trustee Fee Rate": Sixty-three hundred-thousandths of one percent
(0.00063%) per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed, or to be
filed, pursuant to the UCC.
"Unadjusted Principal Distribution Amount": As defined in the
definition of "Principal Distribution Amount".
"Uncertificated Accrued Interest": As defined in Section 2.12(g)
with respect to any REMIC I Regular Interest for any Interest Accrual Period and
in Section 2.14(g) with respect to any REMIC II Regular Interest for any
Interest Accrual Period.
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"Uncertificated Distributable Interest": As defined in Section
2.12(g) with respect to any REMIC I Regular Interest for any Distribution Date
and in Section 2.14(g) with respect to any REMIC II Regular Interest for any
Distribution Date.
"Uncertificated Principal Balance": The principal balance
outstanding from time to time of any REMIC I Regular Interest (calculated in
accordance with Section 2.12(e) hereof) or any REMIC II Regular Interest
(calculated in accordance with Section 2.14(e) hereof).
"Underwriter Exemption": PTE 90-30 issued to Bear, Xxxxxxx & Co.
Inc. and PTE 90-24 issued to Xxxxxx Xxxxxxx & Co. Incorporated, each as amended
by XXX 00-00, XXX 0000-00, XXX 0000-00 and PTE 2007-5 and as may be subsequently
amended following the Closing Date.
"Underwriters": Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated.
"United States Securities Person": Any "U.S. person" as defined in
Rule 902(k) of Regulation S.
"United States Tax Person": 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, any State thereof or the District of
Columbia, 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 source or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States Tax Persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code (or, to the extent provided in the applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 that elect to be treated as United States
Tax Persons).
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of Section
3.05(a)(II) but that has not been recovered from the Borrower or otherwise from
collections on or the proceeds of the Mortgage Loan or REO Property in respect
of which the Advance was made.
"Unrestricted Servicer Reports": Each of the CMSA Loan Setup File,
the CMSA Loan Periodic Update File, the CMSA Delinquent Loan Status Report, the
CMSA Historical Loan Modification Report, the CMSA REO Status Report, the CMSA
Loan Level Reserve Report, the CMSA Reconciliation of Funds Report, the CMSA
Total Loan Report and the Realized Loss Template.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0% of the
Voting Rights shall be allocated among all the Holders of the various Classes of
Principal Balance Certificates in proportion to the respective Class Principal
Balances of such Classes, and 1.0% of the Voting Rights shall be allocated
between the Holders of the Class X-1 Certificates and the Holders of the Class
X-2 Certificates in proportion to the respective Class Notional Amounts of such
Classes. Voting Rights allocated to a particular Class of Certificateholders
shall be allocated among such Certificateholders in proportion to the respective
Percentage Interests evidenced by their respective Certificates. No Voting
Rights shall be allocated to the Class R or Class V Certificateholders.
"Weighted Average REMIC I Remittance Rate": As defined in Section
2.14(f).
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"WFB": Xxxxx Fargo Bank, National Association, or its successor in
interest.
"WFB Pooled Mortgage Loan": Any Mortgage Loan that is either an
Original WFB Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that was
delivered under the WFB Pooled Mortgage Loan Purchase Agreement in substitution
for an Original WFB Pooled Mortgage Loan.
"WFB Pooled Mortgage Loan Purchase Agreement": That certain Mortgage
Loan Purchase and Sale Agreement dated as of December 13, 2007, between WFB as
seller and the Depositor as purchaser.
"WHFIT": 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": Treasury Regulations Section 1.671-5, as
amended.
"Within Grace Period Loan": With respect to any Monthly Payment or
Assumed Monthly Payment due and payable, or deemed due and payable, in respect
of any particular Pooled Mortgage Loan, the status attributable to that Mortgage
Loan by reason of, if applicable, the fact that, although such Monthly Payment
or Assumed Monthly Payment has not been received, the Due Date, together with
any applicable grace period, for such Monthly Payment or Assumed Monthly Payment
has not passed.
"Workout-Delayed Reimbursement Amount": As defined in subsection
(II)(i) of Section 3.05(a).
"Workout Fee": The fee designated as such in, and payable to the
applicable Special Servicer in connection with Corrected Mortgage Loans pursuant
to, the second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.0%.
"Yield Maintenance Charge": With respect to any Mortgage Loan, any
premium, fee or other additional amount paid or payable, as the context
requires, by a Borrower in connection with a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan, calculated, in whole or in
part, pursuant to a yield maintenance formula or otherwise pursuant to a formula
that reflects the lost interest, including any specified amount or specified
percentage of the amount prepaid which constitutes the minimum amount that such
Yield Maintenance Charge may be.
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 as in effect from time
to time;
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference
to a Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
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(v) the words "herein", "hereof", "hereunder", "hereto",
"hereby" and other words of similar import refer to this Agreement as a
whole and not to any particular provision; and
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts Received by the Trust in respect of any
Cross-Collateralized Group, including any payments from Borrowers, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such
collections on or in respect of Corrected Mortgage Loans), together with any
other cash recoveries on and proceeds of any Cross-Collateralized Group shall be
applied among the Pooled Mortgage Loans constituting such Cross-Collateralized
Group in accordance with the express provisions of the related Mortgage Loan
Documents and, in the absence of such express provisions, in accordance with the
Servicing Standard. All amounts Received by the Trust in respect of or allocable
to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan
constitutes part of a Cross-Collateralized Group, but excluding any Serviced
Mortgage Loan Group and a Non-Trust-Serviced Pooled Mortgage Loan), including
any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds (including any such collections on or in respect of
Corrected Mortgage Loans), together with any other cash recoveries on and
proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing
under the related Mortgage Note and Mortgage (including for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Loan Documents and, in the absence of such express provisions
or if and to the extent that such terms authorize the lender to use its
discretion, shall be applied: first, as a recovery of any related and
unreimbursed Servicing Advances (together with, without duplication, any
Unliquidated Advances in respect of prior Servicing Advances and any prior
Servicing Advances theretofore determined to constitute Nonrecoverable Servicing
Advances) and, if applicable, unpaid Liquidation Expenses; second, as a recovery
of accrued and unpaid interest (together with, without duplication, any
Unliquidated Advances in respect of prior P&I Advances of such interest and any
P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I
Advances) on such Pooled Mortgage Loan to, but not including, the Due Date in
the Collection Period in which the collection occurred, exclusive, however, of
any portion of such accrued and unpaid interest that constitutes Default
Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, that constitutes Post-ARD Additional Interest or, in the case of the
0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, that constitutes 0000-0000 Xxxxxx
Xxxxxx Additional Interest; third, as a recovery of principal (together with,
without duplication, any Unliquidated Advances in respect of prior P&I Advances
of such principal and any prior P&I Advances of such principal theretofore
determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage
Loan then due and owing, including by reason of acceleration of such Pooled
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to
the extent of its entire remaining unpaid principal balance); fourth, unless a
Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a
recovery of amounts to be currently applied to the payment of, or escrowed for
the future payment of, real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items; fifth, unless a Liquidation
Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of
Reserve Funds to the extent then required to be held in escrow; sixth, as a
recovery of any Default Charges then due and owing under such Pooled Mortgage
Loan; seventh, as a recovery of any Prepayment Premium or Yield Maintenance
Charge then due and owing under such Pooled Mortgage Loan; eighth, as a recovery
of any assumption fees and modification fees then due and owing under such
Pooled Mortgage Loan; ninth, as a recovery of any other amounts then due and
owing under such Pooled Mortgage Loan other than remaining unpaid principal and,
in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other
than Post-ARD Additional Interest and, in the case of the 0000-0000 Xxxxxx
Xxxxxx Pooled Mortgage Loan, other than 0000-0000 Xxxxxx Xxxxxx Additional
Interest; tenth, as a recovery of any remaining principal of such Pooled
Mortgage Loan to the extent of its entire remaining unpaid principal balance;
and, eleventh, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date or in the case of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage
Loan, as a recovery of accrued and unpaid Post-ARD Additional Interest on such
ARD Mortgage Loan or as a recovery of accrued and unpaid 0000-0000 Xxxxxx Xxxxxx
Additional Interest, as the case may be, to, but not including, the date of
receipt by or on behalf of the Trust.
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(b) Amounts Received by the Trust with respect to each REO
Property (other than, if applicable, any REO Property related to any Serviced
Mortgage Loan Group or a Non-Trust-Serviced Pooled Mortgage Loan), exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property, shall be treated: first, as a
recovery of any related and unreimbursed Servicing Advances (together with any
Unliquidated Advances in respect of prior Servicing Advances and any prior
Servicing Advances theretofore determined to constitute Nonrecoverable Servicing
Advances) and, if applicable, unpaid Liquidation Expenses; second, as a recovery
of accrued and unpaid interest (together with any Unliquidated Advances in
respect of prior P&I Advances of such interest and any P&I Advances of interest
theretofore determined to constitute Nonrecoverable P&I Advances) on the related
REO Pooled Mortgage Loan to, but not including, the Due Date in the Collection
Period of receipt by or on behalf of the Trust, exclusive, however, of any
portion of such accrued and unpaid interest that constitutes Default Interest
or, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage
Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional
Interest or, in the case of an REO Pooled Mortgage Loan that relates to the
0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, that constitutes 0000-0000 Xxxxxx
Xxxxxx Additional Interest; third, as a recovery of principal (together with any
Unliquidated Advances in respect of prior P&I Advances of such principal and any
P&I Advances of principal theretofore determined to constitute Nonrecoverable
P&I Advances) of the related REO Pooled Mortgage Loan to the extent of its
entire unpaid principal balance; fourth, as a recovery of any Default Charges
deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
fifth, as a recovery of any Prepayment Premium or Yield Maintenance Charge
deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
sixth, as a recovery of any other amounts deemed to be due and owing in respect
of the related REO Pooled Mortgage Loan (other than, in the case of an REO
Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated
Repayment Date, accrued and unpaid Post-ARD Additional Interest and other than,
in the case of an REO Pooled Mortgage Loan that relates to the 0000-0000 Xxxxxx
Xxxxxx Pooled Mortgage Loan, accrued and unpaid 0000-0000 Xxxxxx Xxxxxx
Additional Interest); and seventh, in the case of an REO Pooled Mortgage Loan
that relates to an ARD Mortgage Loan after its Anticipated Repayment Date or in
the case of an REO Pooled Mortgage Loan that relates to the 0000-0000 Xxxxxx
Xxxxxx Pooled Mortgage Loan, as a recovery of any accrued and unpaid Post-ARD
Additional Interest on such REO Pooled Mortgage Loan or as a recovery of any
accrued and unpaid 0000-0000 Xxxxxx Xxxxxx Additional Interest, as the case may
be, to, but not including, the date of receipt by or on behalf of the Trust.
(c) Amounts collected on or with respect to each Serviced Mortgage
Loan Group or any related REO Property shall be applied in accordance with the
allocation and payment provisions of the applicable Mortgage Loan Group
Intercreditor Agreement. In no event, however, shall there be charged to or
borne by any one or more related Non-Pooled Mortgage Loan Noteholders any
out-of-pocket expense incurred under this Agreement that, in the good faith,
reasonable judgment of the applicable Master Servicer, the applicable Special
Servicer, the Trustee, the Certificate Administrator or the Tax Administrator,
as applicable, (i) relates primarily to the general administration of the Trust
Fund (and is not attributable to any particular mortgage loans), (ii) relates
primarily to a REMIC Pool or the general administration thereof, (iii) relates
primarily to any determination respecting the amount, payment or avoidance of
any tax on the Trust Fund under the REMIC Provisions or (iv) consists of the
actual payment of any REMIC tax. Section 1.03 and Section 3.05(a) of this
Agreement shall be construed in accordance with the preceding statement.
(d) The parties acknowledge that any payments, collections and
recoveries received by the parties to the Non-Trust Servicing Agreement related
to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by
such parties in accordance with the terms and conditions of the related Mortgage
Loan Group Intercreditor Agreement and such Non-Trust-Serviced Pooled Mortgage
Loan.
(e) For the purposes of this Agreement, Post-ARD Additional
Interest on an ARD Mortgage Loan or a 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 successor REO Mortgage Loan, notwithstanding that
the terms of the related Mortgage Loan Documents so permit. To the extent any
Post-ARD Additional Interest is not paid on a current basis, it shall be deemed
to be deferred interest.
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(f) The foregoing applications of amounts received in respect of
any Mortgage Loan or REO Property shall be determined by the applicable Master
Servicer and reflected in the appropriate monthly report from such Master
Servicer and in the appropriate monthly Certificate Administrator Report as
provided in Section 4.02.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that any groups of Pooled Mortgage Loans identified on the Pooled
Mortgage Loan Schedule as being cross-collateralized with each other are, in the
case of each such particular group of Pooled Mortgage Loans, by their terms,
cross-defaulted and cross-collateralized with each other. For purposes of
reference only in this Agreement, and without in any way limiting the servicing
rights and powers of the applicable Master Servicer and/or the applicable
Special Servicer, with respect to any Cross-Collateralized Mortgage Loan (or
successor REO Mortgage Loan with respect thereto), the Mortgaged Property (or
REO Property) that relates or corresponds thereto shall be the property
identified in the Pooled Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement, including each of the defined terms set forth in
Section 1.01, shall be interpreted in a manner consistent with this Section
1.04; provided that, if there exists with respect to any Cross-Collateralized
Group only one original of any document referred to in the definition of
"Mortgage File" covering all the Pooled Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Pooled Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Pooled Mortgage Loan.
SECTION 1.05. Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
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ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF REMIC I REGULAR INTERESTS, REMIC II REGULAR INTERESTS, REMIC III
COMPONENTS, REMIC I RESIDUAL INTEREST, REMIC II RESIDUAL INTEREST, REMIC III
RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01. Conveyance of Pooled Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established under the laws of the State of New York pursuant to this
Agreement and, further that such trust be designated as "Bear Xxxxxxx Commercial
Mortgage Trust 2007-PWR18". The fiscal year-end of such trust shall be December
31. 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. This
Agreement is not intended to create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) all the right, title and interest of the Depositor, in, to
and under (i) the Original Pooled Mortgage Loans and all documents included in
the related Mortgage Files and Servicing Files, (ii) the rights of the Depositor
under Sections 2, 3, 4 (other than Section 4(c)) and 5 (and, to the extent
related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18) of each
Pooled Mortgage Loan Purchase Agreement and (iii) all other assets included or
to be included in the Trust Fund. Such assignment includes (i) all scheduled
payments of principal and interest under and proceeds of the Original Pooled
Mortgage Loans received after the Cut-off Date (other than scheduled payments of
interest and principal due on or before the respective Cut-off Date, which
amounts shall belong and be promptly remitted to the related Pooled Mortgage
Loan Seller), together with all documents delivered or caused to be delivered
hereunder with respect to the Original Pooled Mortgage Loans by the respective
Pooled Mortgage Loan Sellers (including all documents included in the related
Mortgage Files and Servicing Files and any related Additional Collateral); (ii)
any REO Property acquired in respect of an Original Pooled Mortgage Loan (or, in
the case of any REO Property related to a Non-Trust-Serviced Pooled Mortgage
Loan, the rights of the holder of the related Original Pooled Mortgage Loan with
respect thereto); and (iii) such funds or assets as from time to time are
deposited in each Collection Account (but not in any Companion Note Custodial
Account or any Subordinate Note Custodial Account), the Distribution Account,
the Interest Reserve Account, the Excess Liquidation Proceeds Account and, if
established, and subject to the rights of any related Serviced Non-Pooled
Mortgage Loan Noteholders, the REO Account. This conveyance is subject, however,
to the right of the Primary Servicers pursuant to the Primary Servicing
Agreements and the Designated Sub-Servicers pursuant to the Designated
Sub-Servicer Agreements and, in the case of any particular Original Pooled
Mortgage Loan, the rights of any other creditor(s) under any related
intercreditor agreement, co-lender agreement or similar agreement.
After the Depositor's transfer of the Original Pooled Mortgage Loans
to the Trustee pursuant to this Section 2.01(b), the Depositor shall not take
any action inconsistent with the Trust's ownership of the Pooled Mortgage Loans.
(c) The conveyance of the Original Pooled Mortgage Loans and the
related rights and property accomplished hereby is absolute and is intended by
the parties hereto to constitute an absolute transfer of the Original Pooled
Mortgage Loans and such other related rights and property by the Depositor to
the Trustee for the benefit of the Certificateholders. Furthermore, it is not
intended that such conveyance be a pledge of security for a loan. If such
conveyance is determined to be a pledge of security for a loan, however, the
Depositor and the Trustee intend that the rights and obligations of the parties
to such loan shall be established pursuant to the terms of this Agreement. The
Depositor and the Trustee also intend and agree that, in such event, (i) this
Agreement shall constitute a security
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agreement under applicable law, (ii) the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
all of the Depositor's right, title and interest in and to the assets
constituting the Trust Fund, including the Pooled Mortgage Loans subject hereto
from time to time, all principal and interest received on or with respect to
such Mortgage Loans after the Closing Date (other than scheduled payments of
interest and principal due and payable on such Mortgage Loans on or prior to the
related Due Date in December 2007 or, in the case of a Replacement Pooled
Mortgage Loan, on or prior to the related date of substitution), all amounts
held from time to time in each Collection Account, the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account and, if
established, the REO Accounts, and all investment earnings on such amounts, and
all of the Depositor's right, title and interest under the Pooled Mortgage Loan
Purchase Agreements that are described under clause (ii) of the first sentence
of Section 2.01(b), (iii) the possession by the Trustee or its agent of the
Mortgage Notes with respect to the Pooled Mortgage Loans subject hereto from
time to time and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" or possession by a purchaser or person designated by such secured
party for the purpose of perfecting such security interest under applicable law,
and (iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, securities intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor shall file or cause
to be filed, as a precautionary filing, a UCC financing statement substantially
in the form attached as Exhibit J hereto in all appropriate locations in the
State of Delaware promptly following the initial issuance of the Certificates,
and the Trustee shall, at the expense of the Depositor (to the extent
reasonable), prepare and file continuation statements with respect thereto, in
each case within six months prior to the fifth anniversary of the immediately
preceding filing. The Depositor shall cooperate in a reasonable manner with the
Trustee in the preparation and filing such continuation statements. This Section
2.01(c) shall constitute notice to the Trustee pursuant to any requirements of
the UCC in effect in each applicable jurisdiction.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that each
Pooled Mortgage Loan Seller is obligated, at such Pooled Mortgage Loan Seller's
expense, pursuant to the related Pooled Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Trustee or a Custodian appointed thereby, (i) on or before the Closing Date, the
Mortgage Note for each Pooled Mortgage Loan so assigned, endorsed to the Trustee
as specified in clause (i) of the definition of "Mortgage File"(or,
alternatively, if the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note as specified in clause
(i) of the definition of "Mortgage File") and (ii) on or before the respective
delivery dates therefor set forth in the related Pooled Mortgage Loan Purchase
Agreement, the remainder of the Mortgage File and any Additional Collateral
(other than Reserve Funds, which are to be transferred to the applicable Master
Servicer (or a Primary Servicer on its behalf), and, in the case of the Pooled
Mortgage Loans (other than the PMCF Pooled Mortgage Loans), other than the
originals of Letters of Credit, which are to be transferred to the applicable
Master Servicer (or a Primary Servicer on its behalf)) for each Original Pooled
Mortgage Loan acquired by the Depositor from such Pooled Mortgage Loan Seller.
Notwithstanding the preceding sentence, if the applicable Pooled Mortgage Loan
Seller cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vii) and (ix)(A) of the definition of "Mortgage File",
with evidence of recording or filing (if applicable, and as the case may be)
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, as the case may be, then (subject to the obligation of such Pooled
Mortgage Loan Seller to nonetheless (1) from time to time make or cause to be
made reasonably diligent efforts to obtain such document or instrument (with
such evidence) if it is not returned within a reasonable period after the date
when it was transmitted for recording and (2) deliver such document or
instrument to the Trustee or a Custodian appointed thereby (if such document or
instrument is not otherwise returned to the Trustee or such Custodian) promptly
upon such Pooled Mortgage Loan Seller's receipt thereof), so long as a copy of
such document or instrument, certified by such Pooled Mortgage Loan Seller or
title agent as being a copy of the document deposited for recording or filing
and (in the case of such clause (ii)) accompanied by an Officer's Certificate of
the applicable Pooled Mortgage Loan Seller or a statement from the title agent
to the effect that such original Mortgage has been sent to the appropriate
public recording official for recordation, has been delivered to the Trustee on
or before the respective delivery dates therefor set forth in the related Pooled
Mortgage
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Loan Purchase Agreement, the delivery requirements of the related Pooled
Mortgage Loan Purchase Agreement shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File; and if the applicable Pooled Mortgage Loan Seller
cannot or does not so deliver, or cause to be delivered, as to any Pooled
Mortgage Loan (exclusive of a Non-Trust-Serviced Pooled Mortgage Loan), the
original of any of the documents and/or instruments referred to in clauses (iv)
and (ix)(B) of the definition of "Mortgage File", because such document or
instrument has been delivered for recording or filing, as the case may be, then
(subject to the obligation of such Pooled Mortgage Loan Seller to nonetheless
(1) from time to time make or cause to be made reasonably diligent efforts to
obtain such document or instrument (with such evidence) if it is not returned
within a reasonable period after the date when it was transmitted for recording
and (2) deliver such document or instrument to the Trustee or a Custodian
appointed thereby (if such document or instrument is not otherwise returned to
the Trustee or such Custodian) promptly upon such Pooled Mortgage Loan Seller's
receipt thereof), so long as a copy of such document or instrument, certified by
such Pooled Mortgage Loan Seller, a title agent or a recording or filing agent
as being a copy of the document deposited for recording or filing and
accompanied by an Officer's Certificate of such Pooled Mortgage Loan Seller or a
statement from the title agent that such document or instrument has been sent to
the appropriate public recording official for recordation (except that such
certification shall not be required if the Trustee is responsible for
recordation of such document or instrument under this Agreement and such Pooled
Mortgage Loan Seller has delivered the original unrecorded document or
instrument to the Trustee on or before the date that is 45 days following the
Closing Date), has been delivered to the Trustee on or before the respective
delivery dates therefor set forth in the related Pooled Mortgage Loan Purchase
Agreement, the delivery requirements of the related Pooled Mortgage Loan
Purchase Agreement shall be deemed to have been satisfied as to such missing
item, and such missing item shall be deemed to have been included in the related
Mortgage File. In addition, with respect to each Pooled Mortgage Loan (exclusive
of a Non-Trust-Serviced Pooled Mortgage Loan) under which any Additional
Collateral is in the form of a Letter of Credit as of the Closing Date, the
Depositor hereby represents and warrants that the related Pooled Mortgage Loan
Seller is contractually obligated to cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to the Trustee either the related Pooled Mortgage Loan
Seller's rights as the beneficiary thereof and drawing party thereunder or,
alternatively but solely in the case of the PCFII Pooled Mortgage Loans, subject
to the last paragraph in this section, the right to receive the proceeds of any
draw under such Letter of Credit (it being acknowledged that the PCFII Pooled
Mortgage Loan Seller, as the case may be, shall not be required to change the
named beneficiary of such Letter of Credit and that the PCFII Pooled Mortgage
Loan Seller, as the case may be, has agreed to the provision acknowledged in the
final paragraph of this subsection). Furthermore, with respect to each Pooled
Mortgage Loan, if any, as to which there exists a secured creditor impaired
property insurance policy or pollution limited liability environmental
impairment policy covering the related Mortgaged Property, the related Pooled
Mortgage Loan Seller is contractually obligated to cause such policy, within a
reasonable period following the Closing Date, to inure to the benefit of the
Trustee on behalf of the Certificateholders (if and to the extent that it does
not by its terms automatically run to the holder of such Pooled Mortgage Loan).
The Depositor shall deliver to the Trustee on or before the Closing Date a fully
executed counterpart of each Pooled Mortgage Loan Purchase Agreement. With
respect to a Non-Trust-Serviced Pooled Mortgage Loan, the parties hereto
acknowledge the provisions of the related Pooled Mortgage Loan Purchase
Agreement in which the related Pooled Mortgage Loan Seller represents, warrants
and covenants to the effect that the documents described in clauses (ii) and
(iii) of the definition of "Mortgage File" and documents comparable to those
described in clause (iv) of the definition of "Mortgage File" have been
delivered to the trustee or custodian under the related Non-Trust Servicing
Agreement, except to the extent that the absence of such document does not
violate the terms of the related Non-Trust Servicing Agreement. In addition,
with respect to a Non-Trust-Serviced Pooled Mortgage Loan, the parties hereto
acknowledge the provisions of the related Pooled Mortgage Loan Purchase
Agreement in which the related Pooled Mortgage Loan Seller represents, warrants
and covenants to the effect that any "Document Defect" as such term is defined
in the applicable Non-Trust Servicing Agreement shall constitute a Document
Defect under the related Pooled Mortgage Loan Purchase Agreement. None of the
Depositor, the Trustee, any Custodian, either Master Servicer or any Special
Servicer shall be liable for any failure by any Pooled Mortgage Loan Seller to
comply with the document delivery requirements of the related Pooled Mortgage
Loan Purchase Agreement.
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In the case of the PCFII Pooled Mortgage Loans that have Letters of
Credit, the parties hereto acknowledge that under the terms of the related
Pooled Mortgage Loan Purchase Agreement, the original of such Letter of Credit
shall be held by the related Primary Servicer on behalf of the Master Servicer
and at such time as the related Mortgage Loan becomes a Specially Serviced
Mortgage Loan on behalf of the General Special Servicer and the Trustee with a
copy delivered to the Trustee in accordance with the requirements of the
definition of "Mortgage File" and that the PCFII Pooled Mortgage Loan Seller
agreed in the related Pooled Mortgage Loan Purchase Agreement (a) that the
proceeds of such Letter of Credit belong to the Trustee on behalf of
Certificateholders, (b) to notify, on or before the Closing Date, the bank
issuing such Letter of Credit that such Letter of Credit and the proceeds
thereof belong to the Trustee, and to use reasonable efforts to obtain within 30
days (but in any event to obtain within 90 days) following the Closing Date, an
acknowledgment thereof by the bank (with a copy of such acknowledgement to be
sent to the Trustee) or a reissued letter of credit and (c) to indemnify the
Trust for any liabilities, charges, costs, fees or other expenses accruing from
the failure of the PCFII Pooled Mortgage Loan Seller to assign to the Trust all
rights in and to such Letter of Credit under the applicable Pooled Mortgage Loan
Purchase Agreement, including the right and power to draw on such Letter of
Credit and that the PGI Primary Servicer has agreed in the related Primary
Servicing Agreement that any Letter of Credit so held by it shall be held in its
capacity as agent of the Trust and if there occurs any transfer of the Primary
Servicer's primary servicing rights and duties, including in connection with the
related Mortgage Loan becoming a Specially Serviced Mortgage Loan, then the PGI
Primary Servicer shall assign the applicable Letter of Credit to the Trust or at
the direction of the General Special Servicer to such party as the General
Special Servicer may instruct, in each case, at the expense of the PGI Primary
Servicer and the Primary Servicer shall indemnify the Trust for any loss caused
by the ineffectiveness of such assignment or caused by any action or failure to
act with respect to the Letter of Credit after the date the related Mortgage
Loan becomes a Specially Serviced Mortgage Loan to the extent such action or
failure to act is not in accordance with the direction of the General Special
Servicer, so long as such direction is consistent with the terms of the related
Mortgage Loan Documents and the Letter of Credit. Upon a PCFII Pooled Mortgage
Loan becoming a Specially Serviced Mortgage Loan, the Primary Servicer shall
present or draw on the Letter of Credit solely as directed by the General
Special Servicer, and for the limited and sole purpose of so presenting, drawing
or taking other action on the Letter of Credit at the direction of the General
Special Servicer, shall act as the Special Servicer's agent.
(e) As soon as reasonably possible, and in any event within 45
days after the later of (i) the Closing Date (or, in the case of a Replacement
Pooled Mortgage Loan substituted as contemplated by Section 2.03, after the
related date of substitution) and (ii) the date on which all recording
information necessary to complete the subject document is received by the
Trustee, the Trustee shall complete (to the extent necessary), and shall submit
for recording or filing, as the case may be, including via electronic means, if
appropriate, in or with the appropriate office for real property records or UCC
Financing Statements, as applicable, each assignment of Mortgage and assignment
of Assignment of Leases (except, in each case, with respect to any Mortgage or
Assignment of Leases that has been recorded in the name of MERS or its designee)
in favor of the Trustee referred to in clause (iv) of the definition of
"Mortgage File" that has been received by the Trustee or a Custodian on its
behalf and each assignment of UCC Financing Statement (except with respect to
any UCC Financing Statement that has been recorded in the name of MERS or its
designee) in favor of the Trustee referred to in clause (ix)(B) of the
definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf; provided, however, that (x) the Trustee shall only
submit such items for recording or filing to the extent that they are related to
Mortgage Loans for which PMCF is the Pooled Mortgage Loan Seller and (y) the
parties hereto acknowledge that the BSCMI Pooled Mortgage Loan Purchase
Agreement, the PCFII Pooled Mortgage Loan Purchase Agreement, the WFB Pooled
Mortgage Loan Agreement and the Nationwide Pooled Mortgage Loan Agreement
require BSCMI, PCFII, WFB or Nationwide, as the case may be, to itself submit or
cause to be submitted, such items for recording or filing to the extent that
they are related to Mortgage Loans for which such Pooled Mortgage Loan Seller is
the applicable Pooled Mortgage Loan Seller. Each such assignment shall reflect
that it should be returned by the public recording office to the Trustee (or, in
the case of the PCFII Pooled Mortgage Loans, to PCFII, which has agreed in the
related Pooled Mortgage Loan Purchase Agreement, to deliver each such assignment
to the Trustee (with a copy thereof to the applicable Master Servicer) following
receipt of such recorded assignment or copy thereof if the original is retained
by the public recording office) following recording, and each such assignment of
UCC Financing Statement shall reflect that the file copy thereof or an
appropriate receipt therefor, as applicable, should be returned to the Trustee
(or, in the case of the PCFII Pooled Mortgage Loans, to PCFII, which has agreed
in the related Pooled Mortgage Loan Purchase Agreement,
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to deliver each such assignment to the Trustee (with a copy thereof to the
applicable Master Servicer) following receipt of such recorded assignment or
copy thereof if the original is retained by the public recording office)
following filing; provided that in those instances where the public recording
office retains the original assignment of Mortgage or assignment of Assignment
of Leases a copy of the recorded original shall be obtained. At such time as
such assignments or verifications of electronic filing have been returned to the
Trustee, the Trustee shall, if so requested, forward a copy thereof to the
applicable Master Servicer either, to the extent that they are related to
Mortgage Loans for which PMCF or Nationwide is the Pooled Mortgage Loan Seller,
at the expense of the related Pooled Mortgage Loan Seller to the extent provided
in the separate agreement between the Trustee and such Pooled Mortgage Loan
Seller, or, to the extent that they are related to Mortgage Loans for which
BSCMI or WFB is the Pooled Mortgage Loan Seller, at the expense of the related
Pooled Mortgage Loan Seller as provided in the related Pooled Mortgage Loan
Purchase Agreement and, in any case, not at the expense of the Trust Fund. If
any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the Trustee shall direct the
related Pooled Mortgage Loan Seller to prepare or cause to be prepared promptly,
pursuant to the related Pooled Mortgage Loan Purchase Agreement, a substitute
therefor or cure such defect, as the case may be, and thereafter the Trustee (in
connection with Mortgage Loans described in clause (x) above) or the applicable
Pooled Mortgage Loan Seller (in connection with Mortgage Loans described in
clause (y)) shall, upon receipt thereof, cause the same to be duly recorded or
filed, as appropriate. If the related Pooled Mortgage Loan Seller has been so
notified and has not prepared a substitute document or cured such defect, as the
case may be, within 60 days, the Trustee shall promptly notify the Master
Servicers, the Primary Servicers, the Special Servicers, the Rating Agencies and
the Controlling Class Representative. The Depositor and the Trustee hereby
acknowledge and agree that PMCF shall be responsible for paying, pursuant to a
separate agreement between such Pooled Mortgage Loan Seller and the Trustee and
not pursuant to this Agreement, an upfront fee to the Trustee in connection with
the above-referenced recording and filing of documents insofar as such recording
and filing relate to the Original Pooled Mortgage Loans sold by PMCF under the
PMCF Pooled Mortgage Loan Purchase Agreement; provided that PMCF shall not
actually record or file any such documents.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that each
Pooled Mortgage Loan Seller is contractually obligated, at such Pooled Mortgage
Loan Seller's expense, pursuant to the related Pooled Mortgage Loan Purchase
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the applicable Master Servicer, on or before the date that is 45
days after the Closing Date, in the case of the items in clause (i) below, and
20 days after the Closing Date, in the case of the items in clause (ii) below,
the following items (except to the extent that any of the following items are to
be retained by a Primary Servicer that will continue to act on behalf of the
applicable Master Servicer and except to the extent that any of the following
items relate to a Non-Trust-Serviced Pooled Mortgage Loan): (i) originals or
copies of all financial statements, appraisals, environmental/engineering
reports, transaction screens, seismic assessment reports, leases, rent rolls,
Insurance Policies and certificates, major space leases, legal opinions and
tenant estoppels and any other relevant documents relating to the origination
and servicing of any Mortgage Loan that are reasonably necessary for the ongoing
administration and/or servicing of the applicable Mortgage Loan in the
possession or under the control of such Pooled Mortgage Loan Seller that relate
to the Original Pooled Mortgage Loans transferred by it to the Depositor and, to
the extent that any original documents are not required to be a part of a
Mortgage File for any such Original Pooled Mortgage Loan, originals or copies of
all documents, certificates and opinions in the possession or under the control
of such Pooled Mortgage Loan Seller that were delivered by or on behalf of the
related Borrowers in connection with the origination of such Original Pooled
Mortgage Loans (provided that such Pooled Mortgage Loan Seller shall not be
required to deliver any attorney-client privileged communication, draft
documents or any documents or materials prepared by it or its Affiliates for
internal uses, including without limitation, credit committee briefs or
memoranda and other internal approval documents); and (ii) all unapplied Reserve
Funds and Escrow Payments in the possession or under the control of such Pooled
Mortgage Loan Seller that relate to the Original Pooled Mortgage Loans
transferred by such Pooled Mortgage Loan Seller to the Depositor. Each Master
Servicer (or a Primary Servicer or Sub-Servicer on its behalf) shall hold all
such documents, records and funds that it so receives on behalf of the Trustee
in trust for the benefit of the Certificateholders (and, insofar as they also
relate to any Serviced Non-Pooled Mortgage Loan, on behalf of and for the
benefit of any and all related Serviced Non-Pooled Mortgage Loan Noteholders).
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SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the
Trustee, by its execution and delivery of this Agreement, hereby accepts receipt
on behalf of the Trust, directly or through a Custodian on its behalf, of (i)
the Original Pooled 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 received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Original Pooled Mortgage Loans and such other assets, together with any other
Pooled Mortgage Loans and 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
relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan
Group, the Trustee shall also hold such Mortgage File in trust for the use and
benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each
Master Servicer acknowledges receipt (by it or a Primary Servicer on its behalf)
of all of the original Letters of Credit relating to the Serviced Pooled
Mortgage Loans for which it is the applicable Master Servicer (copies of which
are part of the Mortgage File) and agrees to hold (or cause a Primary Servicer
on its behalf to hold ) such Letters of Credit in trust for the benefit of the
Trustee; provided, however, that the applicable Master Servicer for the PMCF
Pooled Mortgage Loans, for which the applicable Pooled Mortgage Loan Seller is
required to deliver the originals of any Letters of Credit to the Trustee, the
applicable Master Servicer acknowledges receipt of copies of such Letters of
Credit. In the case of the PMCF Pooled Mortgage Loans, the Trustee shall deliver
to the applicable Master Servicer upon request any original Letters of Credit
relating to the Serviced Pooled Mortgage Loans for which it is the applicable
Master Servicer in connection with the performance by such Master Servicer of
its duties hereunder. In connection with the foregoing, the Trustee hereby
certifies to each of the other parties hereto, each Pooled Mortgage Loan Seller
and each Underwriter that, as to each Pooled Mortgage Loan, except as
specifically identified in the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Schedule II, (i) all documents specified in clause (i) of the
definition of "Mortgage File" 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 Pooled 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 Borrower), (B) appears to have been executed (where
appropriate) and (C) purports to relate to such Pooled Mortgage Loan.
(b) On or about the 75th day following the Closing Date, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Original Pooled Mortgage Loan, and the
Trustee shall, subject to Sections 1.04, 2.02(c) and 2.02(d), certify in writing
(and, if any exceptions are noted or if the recordation/filing contemplated by
Section 2.01(e) has not been completed (based solely on receipt by the Trustee
of the particular documents showing evidence of the recordation/filing), the
Trustee or such Custodian shall deliver updates to any exception list attached
to such certification in accordance with the penultimate sentence of this
paragraph) to each of the other parties hereto (substantially in the form of
Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage
Loan Noteholders (in each case, provided that the Trustee has received notice of
the identity of and notice address information for such Serviced Non-Pooled
Mortgage Loan Noteholder) and the Controlling Class Representative that, as to
each Original Pooled Mortgage Loan then subject to this Agreement (except as
specifically identified in any exception report annexed to such certification):
(i) the original Mortgage Note specified in clause (i) of the definition of
"Mortgage File" and all allonges thereto, if any (or a copy of such Mortgage
Note, together with a lost note affidavit and indemnity certifying that the
original of such Mortgage Note has been lost), the original or copy of documents
specified in clauses (ii), (iii), (iv) (except with respect to a
Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the
verification of the effective date with respect to a title policy or the date of
funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan
Schedule specifies that a material portion of the interest of the Borrower in
the related Mortgaged Property consists of a leasehold interest) and (xx)
(solely in the case of the Pooled Mortgage Loans secured by the Mortgaged
Properties identified on the Pooled Mortgage Loan Schedule as "RRI Portfolio",
"Marriott Houston Westchase", "Norfolk Marriott", "Trumbull Marriott", "HRC
Portfolio 3", "HRC Xxxxxxxxx 0", "XXX Portfolio 2", "Candlewood Suites
Northwoods Mall", "Clarion Inn & Suites Orlando", "Holiday Inn Express
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Hotel", "Xxxxxxx Inn - Best Western", "Hampton Inn - Indianapolis", "Comfort Inn
- Mars, PA", "Holiday Inn Express - San Antonio Airport North" and "Comfort
Suites - Airport North") of the definition of "Mortgage File" have been received
by it or a Custodian on its behalf; (ii) if such report is due more than 180
days after the Closing Date, the recordation/filing contemplated by Section
2.01(e) has been completed (based solely on receipt by the Trustee of the
particular recorded/filed documents or an appropriate receipt of
recording/filing therefor); (iii) all documents received by it or any Custodian
with respect to such Pooled Mortgage Loan have been reviewed by it or by such
Custodian on its behalf and (A) appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Borrower), (B) appear to have been executed and (C) purport to
relate to such Pooled Mortgage Loan; (iv) based on the examinations referred to
in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing
documents, the information set forth in the Pooled Mortgage Loan Schedule with
respect to the items specified in clause (iii)(A) and clause (vi) of the
definition of "Pooled Mortgage Loan Schedule" accurately reflects the
information set forth in the related Mortgage File; and (v) the Trustee on
behalf of the Trust is shown as the owner of each Mortgage recorded in the name
of MERS or its designee. Every 90 days after such 75th day following the Closing
Date, until the earlier of (i) the date on which such exceptions are eliminated
and such recordation/filing has been completed, and (ii) the date on which all
the affected Pooled Mortgage Loans are removed from the Trust Fund, the Trustee
or a Custodian on its behalf shall deliver electronically to the Pooled Mortgage
Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders and the
Controlling Class Representative an update to the exception report annexed to
the certification described above substantially in the form of Exhibit N, which
update shall report any remaining outstanding exceptions with respect to each
Original Pooled Mortgage Loan. Such delivery shall be deemed to constitute a
certification of the substance of the matters set forth in the form of such
Exhibit N (except as set forth in such exception report). The applicable Master
Servicer shall provide the contact name, mailing address and e-mail address of
each Serviced Non-Pooled Mortgage Loan Noteholder to the Trustee to the extent
not previously provided thereto, provided that the applicable Master Servicer
has such information.
(c) If a Pooled Mortgage Loan Seller substitutes a Replacement
Pooled Mortgage Loan for any Defective Pooled Mortgage Loan as contemplated by
Section 2.03, the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to such Replacement
Pooled Mortgage Loan, and the Trustee shall deliver a certification comparable
to that described in the prior paragraph, in respect of such Replacement Pooled
Mortgage Loan, on or about the 30th day following the related date of
substitution (and, if any exceptions are noted, every 90 days thereafter until
the earlier of (i) the date on which such exceptions are eliminated and all
related recording/filing has been completed, and (ii) the date on which such
Replacement Pooled Mortgage Loan is removed from the Trust Fund).
With respect to the documents described in clause (iii) of the
definition of "Mortgage File", absent actual knowledge to the contrary, the
Trustee may assume, for purposes of the certification(s) delivered in this
Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the
Mortgage File for each Pooled Mortgage Loan includes a separate Assignment of
Leases.
With respect to the documents described in clause (ix) of the
definition of "Mortgage File", absent actual knowledge to the contrary or copies
of UCC Financing Statements delivered to the Trustee as part of the Mortgage
File indicating otherwise, the Trustee may assume, for purposes of the
certification(s) to be delivered pursuant to this Section 2.02(b), that the
Mortgage File for each Pooled Mortgage Loan should include a copy of one
state-level UCC Financing Statement filed in the state of incorporation or
organization of the related Borrower for each Mortgaged Property (or with
respect to any Pooled Mortgage Loan that has two or more Borrowers, for each
related Borrower). To the extent appropriate under applicable law, the UCC
Financing Statements to be assigned to the Trust will be delivered on the new
national forms and in recordable form and will be filed in the state of
incorporation or organization as so indicated on the documents provided.
(d) None of the Depositor, the Certificate Administrator, the
Trustee, the Master Servicers, the Primary Servicer, any Subservicer, the
Special Servicers or any Custodian is under any duty or obligation to (i)
determine whether any of the documents specified in clauses (iii), (iv)(B), (v),
(vi), (vii), (ix) and (xi) through (xviii) of the definition
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of "Mortgage File" exist or are required to be delivered by the Pooled Mortgage
Loan Sellers in respect of any Pooled Mortgage Loan unless such item(s) are
specified on the related Mortgage File Checklist, or (ii) inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Pooled 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, except as expressly provided in
Section 2.01(e), none of the Depositor, the Trustee, the Master Servicers, the
Primary Servicer, any Subservicer, the Special Servicers 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.
(e) In performing the reviews contemplated by subsections (a) and
(b) above, the Trustee may conclusively rely on the related Pooled Mortgage Loan
Seller as to the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's review of the Mortgage
Files is limited solely to confirming that the documents specified in clauses
(i), (ii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled
Mortgage Loan), (viii) (without regard to the verification of the effective date
with respect to a title policy or the date of funding with respect to a title
commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material
portion of the interest of the Borrower in the related Mortgaged Property
consists of a leasehold interest) and (xx) (solely in the case of the Pooled
Mortgage Loans secured by the Mortgaged Properties identified on the Pooled
Mortgage Loan Schedule as "RRI Portfolio", "RRI Portfolio", "Marriott Houston
Westchase", "Norfolk Marriott", "Trumbull Marriott", "HRC Portfolio 3", "HRC
Xxxxxxxxx 0", "XXX Portfolio 2", "Candlewood Suites Northwoods Mall", "Clarion
Inn & Suites Orlando", "Holiday Inn Express Hotel", "Xxxxxxx Inn - Best
Western", "Hampton Inn - Indianapolis", "Comfort Inn - Mars, PA", "Holiday Inn
Express - San Antonio Airport North" and "Comfort Suites - Airport North") of
the definition of "Mortgage File" have been received by it or a Custodian on its
behalf and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above.
SECTION 2.03. Certain Repurchases and Substitutions of Pooled
Mortgage Loans by the Pooled Mortgage Loan Sellers.
(a) If, in the process of reviewing the documents delivered or
caused to be delivered by the Pooled Mortgage Loan Sellers as contemplated by
Section 2.01(d), the Trustee or any Custodian discovers that any document
required to have been delivered as contemplated by Section 2.01(d) has not been
so delivered, or discovers that any of the documents that were delivered has not
been properly executed, contains information that does not conform in any
material respect with the corresponding information set forth in the Pooled
Mortgage Loan Schedule, or is defective on its face (each, including, without
limitation, that a document is missing, a "Document Defect"), or if, at any
other time, the Trustee or any other party hereto discovers (without implying
that any such party has a duty to make or attempt to make such discovery) a
Document Defect in respect of any Pooled Mortgage Loan, the party discovering
such Document Defect shall promptly so notify each of the other parties hereto.
If any party hereto discovers (without implying that any such party has a duty
to make or attempt to make such discovery) or receives notice of a breach of any
representation or warranty relating to any Pooled Mortgage Loan set forth in or
made pursuant to Section 4(b) or 4(d) of any Pooled Mortgage Loan Purchase
Agreement (a "Breach"), such party shall promptly so notify each of the other
parties hereto. Upon the Trustee's discovery or receipt of notice that a
Document Defect or Breach exists with respect to any Pooled Mortgage Loan, the
Trustee shall notify the Controlling Class Representative, the Depositor, the
related Pooled Mortgage Loan Seller and the Rating Agencies.
(b) Promptly upon its becoming aware of any Material Document
Defect or Material Breach with respect to any Pooled Mortgage Loan or its
receipt of notice from the Trustee or any other party to this Agreement of a
Material Document Defect or Material Breach with respect to any Pooled Mortgage
Loan, the applicable Master Servicer shall (and the applicable Special Servicer
may) notify the related Pooled Mortgage Loan Seller in writing of such Material
Document Defect or Material Breach, as the case may be, and direct such Pooled
Mortgage Loan Seller that it must, not later than 90 days from the receipt by
such Pooled Mortgage Loan Seller of such notice or 90 days from the Pooled
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Mortgage Loan Seller's discovery of the subject Material Document Defect or
Material Breach (or, if such Material Breach or Material Document Defect, as the
case may be, relates to whether such Pooled Mortgage Loan is or, as of the
Closing Date (or, in the case of a Replacement Pooled Mortgage Loan, as of the
related date of substitution), was a Qualified Mortgage, and provided that such
Pooled Mortgage Loan Seller discovered or received prompt written notice
thereof, within 90 days after any earlier discovery by the Pooled Mortgage Loan
Seller or any party to this Agreement of such Material Breach or Material
Document Defect, as the case may be) (such 90-day period, in any case, the
"Initial Resolution Period"), correct or cure such Material Document Defect or
Material Breach, as the case may be, in all material respects, or repurchase the
affected Pooled Mortgage Loan (as, if and to the extent required by the related
Pooled Mortgage Loan Purchase Agreement), at the applicable Purchase Price;
provided that if such Pooled Mortgage Loan Seller certifies to the Trustee in
writing (i) that such Material Document Defect or Material Breach, as the case
may be, does not relate to whether the affected Pooled Mortgage Loan is or, as
of the Closing Date (or, in the case of a Replacement Pooled Mortgage Loan, as
of the related date of substitution), was a Qualified Mortgage, (ii) that such
Material Document Defect or Material Breach, as the case may be, is capable of
being cured but not within the applicable Initial Resolution Period, (iii) that
such Pooled Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Material Document Defect or Material Breach, as the case may
be, during the applicable Initial Resolution Period, and (iv) that such Pooled
Mortgage Loan Seller anticipates that such Material Document Defect or Material
Breach, as the case may be, will be cured within an additional 90-day period
(such additional 90-day period, the "Resolution Extension Period") (a copy of
which certification shall be delivered by the Trustee to the applicable Master
Servicer, the applicable Primary Servicer (if any), the applicable Special
Servicer, the Controlling Class Representative and the Rating Agencies), then
such Pooled Mortgage Loan Seller shall have an additional period equal to any
such applicable Resolution Extension Period to complete such correction or cure
(or, upon failure to complete such correction or cure, to repurchase the
affected Pooled Mortgage Loan); and provided, further, that, in lieu of
repurchasing the affected Pooled Mortgage Loan as contemplated above (but, in
any event, no later than such repurchase would have to have been completed),
such Pooled Mortgage Loan Seller shall be permitted, during the three-month
period following the Startup Day for the REMIC Pool that holds the affected
Pooled Mortgage Loan (or during the two-year period following such Startup Day
if the affected Pooled Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations
Section 1.860G-2(f)), to replace the affected Pooled Mortgage Loan with one or
more Qualifying Substitute Mortgage Loans and to pay a cash amount equal to the
applicable Substitution Shortfall Amount, subject to any other applicable terms
and conditions of the related Pooled Mortgage Loan Purchase Agreement and this
Agreement. The parties hereto agree that delivery by the Trustee (or a Custodian
on its behalf) of a certification or schedule of exceptions to a Pooled Mortgage
Loan Seller shall not in and of itself constitute delivery of notice of any
Material Document Defect or knowledge of such Pooled Mortgage Loan Seller of any
Material Document Defect therein. If any Pooled Mortgage Loan is to be
repurchased or replaced as contemplated by this Section 2.03, the applicable
Master Servicer shall designate its Collection Account as the account to which
funds in the amount of the applicable Purchase Price or Substitution Shortfall
Amount (as the case may be) are to be wired, and the applicable Master Servicer
shall promptly notify the Trustee and the Certificate Administrator when such
deposit is made. Any such repurchase or replacement of a Pooled Mortgage Loan
shall be on a whole loan, servicing released basis. Notwithstanding this Section
2.03(b), the absence from the Mortgage File, (i) on the Closing Date of the
Mortgage Note (or a lost note affidavit and indemnity with a copy of the
Mortgage Note) and (ii) by the first anniversary of the Closing Date, of
originals or copies of the following documents (without the presence of any
factor that reasonably mitigates such absence, non-conformity or irregularity)
or of any Specially Designated Mortgage Loan Document shall be conclusively
presumed to be a Material Document Defect and shall obligate the party
discovering such to give the Trustee prompt notice, whereupon the Trustee shall
notify the applicable Pooled Mortgage Loan Seller to cure such Material Document
Defect, or, failing that, repurchase the related Pooled Mortgage Loan or REO
Mortgage Loan, all in accordance with the procedures set forth herein: (A) the
Mortgage and any separate Assignment of Leases as described by clauses (ii) and
(iii) of the definition of "Mortgage File"; (B) the title insurance policy as
described in clause (viii) of the definition of "Mortgage File" (or, if the
policy has not yet been issued, an original or copy of a written commitment
"marked-up" at the closing of such Mortgage Loan, interim binder or the pro
forma title insurance policy, in each case evidencing a binding commitment to
issue such policy); or (C) except in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, the assignment of Mortgage (and any separate Assignment of
Leases) as described by clause (iv) of the definition of "Mortgage File".
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The remedies provided for in this Section 2.03(b) with respect to
any Material Document Defect or Material Breach with respect to any Pooled
Mortgage Loan shall apply to the related REO Property.
If (x) a Defective Pooled Mortgage Loan is to be repurchased or
replaced as described above, (y) such Defective Pooled Mortgage Loan is part of
a Cross-Collateralized Group and (z) the applicable document defect or breach
does not constitute a Material Document Defect or Material Breach, as the case
may be, as to the other Pooled Mortgage Loan(s) that are a part of such
Crossed-Collateralized Group (the "Other Crossed Loans") (without regard to this
paragraph), then the applicable Document Defect or Breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Other Crossed Loan for purposes of the above
provisions, and the related Pooled Mortgage Loan Seller shall be obligated to
repurchase or replace each such Other Crossed Loan in accordance with the
provisions above unless, in the case of such Breach or Document Defect:
(A) the related Pooled Mortgage Loan Seller (at its
expense) delivers or causes to be delivered to the Trustee an Opinion of
Counsel to the effect that such Pooled Mortgage Loan Seller's repurchase
of only those Pooled Mortgage Loans as to which a Material Breach has
actually occurred without regard to the provisions of this paragraph (the
"Affected Loan(s)") and the operation of the remaining provisions of this
Section 2.03(b) will not result in an Adverse REMIC Event or an Adverse
Grantor Trust Event hereunder; and
(B) both of the following conditions would be satisfied if
the related Pooled Mortgage Loan Seller were to repurchase or replace only
the Affected Loans and not the Other Crossed Loans:
(i) the debt service coverage ratio for such Other
Crossed Loan (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement is not
less than the least of (A) 0.10x below the debt service coverage
ratio for the Cross-Collateralized Group (including the Affected
Loan(s)) set forth in Appendix B to the Prospectus Supplement, (B)
the debt service coverage ratio for the Cross-Collateralized Group
(including the Affected Loan(s)) for the four preceding calendar
quarters preceding the repurchase or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed
Loans is not greater than the greatest of (A) the loan-to-value
ratio, expressed as a whole number (taken to one decimal place), for
the Cross-Collateralized Group (including the Affected Loan(s)) set
forth in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group (including
the Affected Loan(s)) at the time of repurchase or replacement and
(C) 75%.
The determination of the applicable Master Servicer as to whether the conditions
set forth above have been satisfied shall be conclusive and binding in the
absence of manifest error. The applicable Master Servicer will be entitled to
cause to be delivered, or direct the related Pooled Mortgage Loan Seller to
cause to be delivered, to the applicable Master Servicer an Appraisal of any or
all of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (ii) above has been satisfied, in each case at the
expense of the related Pooled Mortgage Loan Seller if the scope and cost of the
Appraisal is approved by the related Pooled Mortgage Loan Seller and the
Controlling Class Representative (such approval not to be unreasonably withheld
in each case).
With respect to any Defective Pooled Mortgage Loan that forms a part
of a Cross-Collateralized Group and as to which the conditions described in the
preceding paragraph are satisfied, such that the Trust Fund will continue to
hold the Other Crossed Loans, the related Pooled Mortgage Loan Seller and the
Trustee, as successor to the Depositor, are bound by an agreement (set forth in
the related Pooled Mortgage Loan Purchase Agreement) to forbear from enforcing
any remedies against the other's Primary Collateral but each is permitted to
exercise remedies against the Primary Collateral securing its respective Pooled
Mortgage Loans, including with respect to the Trustee, the Primary Collateral
securing the Affected Loan(s) still held by the Trustee, so long as such
exercise does not impair the ability of the other party to exercise its remedies
against its Primary Collateral. If the exercise of remedies by one such party
would impair the ability of the other such party to exercise its remedies with
respect to the Primary Collateral securing the Affected
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Loan or the Other Crossed Loans, as the case may be, held by the other such
party, then both parties have agreed to forbear from exercising such remedies
unless and until the Mortgage Loan Documents evidencing and securing the
relevant Pooled Mortgage Loans can be modified in a manner that complies with
the applicable Pooled Mortgage Loan Purchase Agreement to remove the threat of
impairment as a result of the exercise of remedies. Any reserve or other cash
collateral or letters of credit securing any of the Cross-Collateralized Loans
shall be allocated between such Pooled Mortgage Loans in accordance with the
Mortgage Loan Documents, or otherwise on a pro rata basis based upon their
outstanding Stated Principal Balances. All other terms of the Pooled Mortgage
Loans shall remain in full force and effect, without any modification thereof.
The Borrowers set forth on Schedule V hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Pooled Mortgage Loan without the related
Borrower's consent.
To the extent necessary and appropriate, the Trustee shall execute
(or, subject to Section 3.01(b) and Section 3.10, provide the applicable Master
Servicer with a limited power of attorney that enables the applicable Master
Servicer to execute) the modification of the Mortgage Loan Documents that
complies with the applicable Pooled Mortgage Loan Purchase Agreement to remove
the threat of impairment of the ability of the Pooled Mortgage Loan Seller or
the Trust Fund to exercise its remedies with respect to the Primary Collateral
securing the Pooled Mortgage Loan(s) held by such party resulting from the
exercise of remedies by the other such party; provided that the Trustee shall
not be liable for any misuse of any such power of attorney by a Master Servicer.
The applicable Master Servicer shall advance all costs and expenses incurred by
the Trustee and such Master Servicer with respect to any Cross-Collateralized
Group pursuant to this paragraph, and such advances and interest thereon shall
(i) constitute and be reimbursable as Servicing Advances and (ii) be included in
the calculation of Purchase Price for the Pooled Mortgage Loan(s) to be
repurchased or replaced. The applicable Master Servicer shall not be liable to
any Certificateholder or any other party hereto if a modification of the
Mortgage Loan Documents described above cannot be effected for any reason beyond
the control of such Master Servicer.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer, the Special Servicer and/or the Trustee pursuant to
this Section 2.03(b), including reasonable attorney fees and expenses, shall
constitute Servicing Advances to the extent not collected from the related
Pooled Mortgage Loan Seller.
(c) Whenever one or more Replacement Pooled Mortgage Loans are
substituted for a Defective Pooled Mortgage Loan by a Pooled Mortgage Loan
Seller as contemplated by this Section 2.03, the applicable Master Servicer
shall direct the party effecting the substitution to deliver to the Trustee the
related Mortgage File and a certification to the effect that such Replacement
Pooled Mortgage Loan satisfies or such Replacement Pooled Mortgage Loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan". No mortgage loan may be substituted for a
Defective Pooled Mortgage Loan as contemplated by this Section 2.03 if the
Pooled Mortgage Loan to be replaced was itself a Replacement Pooled Mortgage
Loan, in which case, absent a cure of the relevant Material Breach or Material
Document Defect, the affected Pooled Mortgage Loan will be required to be
repurchased as contemplated hereby. Monthly Payments due with respect to each
Replacement Pooled Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Pooled Mortgage Loan (if any) after its respective Cut-off Date and on
or prior to the related date of substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Replacement Pooled Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly Payments due
with respect to each corresponding Deleted Pooled Mortgage Loan (if any) after
the related date of substitution, shall not be part of the Trust Fund and are to
be remitted by the applicable Master Servicer to the party effecting the related
substitution promptly following receipt.
If any Pooled Mortgage Loan is to be repurchased or replaced by a
Pooled Mortgage Loan Seller as contemplated by this Section 2.03, the applicable
Master Servicer shall direct such party to amend the Pooled Mortgage Loan
Schedule to reflect the removal of any Deleted Pooled Mortgage Loan and, if
applicable, the substitution of the related Replacement Pooled Mortgage Loan(s);
and, upon its receipt of such amended Pooled Mortgage Loan Schedule, the
applicable Master Servicer shall deliver or cause the delivery of such amended
Pooled Mortgage Loan Schedule to the other parties hereto. Upon any substitution
of one or more Replacement Pooled Mortgage Loans for a Deleted Pooled
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Mortgage Loan, such Replacement Pooled Mortgage Loan(s) shall become part of the
Trust Fund and be subject to the terms of this Agreement in all respects.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer, the Special Servicer and/or the Trustee pursuant to
this Section 2.03(c), including reasonable attorney fees and expenses, shall
constitute Servicing Advances to the extent not collected from the related
Pooled Mortgage Loan Seller.
(d) Upon receipt of an Officer's Certificate from the applicable
Master Servicer to the effect that the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Pooled Mortgage Loan
repurchased or replaced by the related Pooled Mortgage Loan Seller as
contemplated by this Section 2.03 has been deposited in such Master Servicer's
Collection Account, and further, if applicable, upon receipt of the Mortgage
File for each Replacement Pooled Mortgage Loan (if any) to be substituted for a
Deleted Pooled Mortgage Loan, together with any certifications and/or opinions
required pursuant to Section 2.03(b) to be delivered by the party effecting the
repurchase/substitution, the Trustee shall (i) release or cause the release of
the Mortgage File and any Additional Collateral held by or on behalf of the
Trustee for the Deleted Pooled Mortgage Loan to the related Pooled Mortgage Loan
Seller or its designee and (ii) execute and deliver such instruments of release,
transfer and/or assignment, in each case without recourse, as shall be provided
to it and are reasonably necessary to vest in the party effecting the
repurchase/substitution or its designee the ownership of the Deleted Pooled
Mortgage Loan, and the applicable Master Servicer shall notify the affected
Borrowers of the transfers of the Deleted Pooled Mortgage Loan(s) and any
Replacement Pooled Mortgage Loan(s). If the Mortgage related to the Deleted
Pooled Mortgage Loan has been recorded in the name of MERS or its designee, the
related Master Servicer shall take all necessary action to reflect the release
of such Mortgage on the records of MERS. In connection with any such repurchase
or substitution by the related Pooled Mortgage Loan Seller, each of the Master
Servicers and the Special Servicers shall deliver to the party effecting the
repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of such Master Servicer or such Special
Servicer, as the case may be, with respect to the Deleted Pooled Mortgage Loan,
in each case at the expense of the party effecting the repurchase/substitution.
The reasonable "out-of-pocket" costs and expenses, including reasonable
attorneys' fees and expenses, incurred by a Master Servicer, a Special Servicer
and/or the Trustee pursuant to this Section 2.03(d), to the extent not collected
from the related Pooled Mortgage Loan Seller, shall be reimbursable to each of
them as Servicing Advances in respect of the affected Pooled Mortgage Loan.
(e) The related Pooled Mortgage Loan Purchase Agreement provides
the sole remedies available to the Certificateholders, or the Trustee on their
behalf, respecting any Document Defect or Breach with respect to any Pooled
Mortgage Loan. If, in connection with any Material Document Defect or Material
Breach, the related Pooled Mortgage Loan Seller defaults on its obligations to
cure such Material Document Defect or Material Breach, as the case may be, in
all material respects or to repurchase or replace the affected Pooled Mortgage
Loan as contemplated by this Section 2.03, then the applicable Master Servicer
shall (and the applicable Special Servicer may) promptly notify the Trustee and
the Controlling Class Representative, and the Trustee shall notify the
Certificateholders. Thereafter, the Trustee shall (and the applicable Special
Servicer may in its own name, or, as provided in Section 3.01(b) below, in the
name of the Trustee) take such actions on behalf of the Trust with respect to
the enforcement of such repurchase/substitution obligations, including the
institution and prosecution of appropriate legal proceedings, as the Trustee
(or, if applicable, the applicable Special Servicer) shall determine are in the
best interests of the Certificateholders (taken as a collective whole). Any and
all reasonable "out-of-pocket" costs and expenses incurred by the applicable
Master Servicer, the Trustee and/or the applicable Special Servicer pursuant to
this Section 2.03(e), including, reasonable attorney's fees and expenses, to the
extent not collected from the related Pooled Mortgage Loan Seller, shall
constitute Servicing Advances in respect of the affected Pooled Mortgage Loan.
(f) The Trustee shall not consent to the assignment of the related
Pooled Mortgage Loan Seller's obligations under any Pooled Mortgage Loan
Purchase Agreement without written confirmation to the Trustee from each Rating
Agency to the effect that such assignment would not, in and of itself, result in
an Adverse Rating Event with respect to any Class of Rated Certificates.
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SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance
under, and compliance with this Agreement, will not violate the
Depositor's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
material instrument to which it is a party or by which it is bound, which
default or breach, in the good faith and reasonable judgment of the
Depositor, is likely to affect materially and adversely the ability of the
Depositor to perform its obligations under this Agreement.
(iii) The Depositor has the full corporate power and
authority to 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. This
Agreement, assuming due authorization, execution and delivery by each of
the other parties hereto, constitutes a valid, legal and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(iv) 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 the
ability of the Depositor to perform its obligations under this Agreement.
(v) Immediately prior to the transfer of the Original
Pooled Mortgage Loans to the Trustee for the benefit of the
Certificateholders pursuant to this Agreement, the Depositor had such
right, title and interest in and to each Original Pooled Mortgage Loan as
was transferred to it by the related Pooled Mortgage Loan Seller pursuant
to the related Pooled Mortgage Loan Purchase Agreement. The Depositor has
not transferred any of its right, title and interest in and to the
Original Pooled Mortgage Loans to any Person other than the Trustee.
(vi) The Depositor is transferring all of its right, title
and interest in and to the Original Pooled Mortgage Loans to the Trustee
for the benefit of the Certificateholders free and clear of any and all
liens, pledges, charges, security interests and other encumbrances created
by or through the Depositor.
(vii) Except for any actions that are the express
responsibility of another party hereunder or under any Pooled Mortgage
Loan Purchase Agreement, and further except for actions that the Depositor
is expressly permitted to complete subsequent to the Closing Date, the
Depositor has taken all actions required under applicable law to
effectuate the transfer of all of its right, title and interest in and to
the Original Pooled Mortgage Loans by the Depositor to the Trustee.
(viii) No consent, approval, license, authorization or order
of any state or federal court or governmental agency or body is required
for the consummation by the Depositor of the transactions contemplated
herein, except for (A) those consents, approvals, licenses, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, license, authorization or order would not have a
material adverse effect on the ability of the Depositor to perform its
obligations under this Agreement and (B) those filings
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and recordings of the Depositor and assignments thereof that are
contemplated by this Agreement to be completed after the Closing Date.
(b) The representations and warranties of the Depositor set forth
in Section 2.04(a) shall survive the execution and delivery of this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust remains in existence. Upon discovery by any party
hereto of any breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
SECTION 2.05. Representations and Warranties of PAR as a Master
Servicer.
(a) PAR as a Master Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) Such Master Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and such Master Servicer is in compliance with the laws of each
State in which any related Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan for which it
is the Master Servicer hereunder and to perform its obligations under this
Agreement.
(ii) Such Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate
such Master Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or by which
it is bound, which default or breach, in the good faith and reasonable
judgment of such Master Servicer, is likely to affect materially and
adversely the ability of such Master Servicer to perform its obligations
under this Agreement.
(iii) Such Master Servicer has the full power and authority
to enter into and consummate all transactions involving such Master
Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of such Master Servicer, enforceable against
such Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(v) Such Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in such Master Servicer's good faith and reasonable judgment,
is likely to affect materially and adversely the ability of such Master
Servicer to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by such Master Servicer of the transactions contemplated
herein, and such Master Servicer possesses all licenses and authorizations
necessary to perform its obligations under this Agreement, except for
those consents, approvals, licenses, authorizations or orders that
previously have been obtained or where the lack of such consent, approval,
license, authorization or order would not have a material adverse effect
on the ability of such Master Servicer to perform its obligations under
this Agreement.
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(vii) No litigation is pending or, to the best of such
Master Servicer's knowledge, threatened against such Master Servicer that,
if determined adversely to such Master Servicer, would prohibit such
Master Servicer from entering into this Agreement or that, in such Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of such Master Servicer to perform its
obligations under this Agreement.
(viii) Such Master Servicer has errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(d).
(b) The representations and warranties of PAR as a Master Servicer
set forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor to PAR as a Master Servicer shall be deemed to
have made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.05(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.05(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.06. Representations and Warranties of WFB as a Master
Servicer.
(a) WFB as a Master Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) Such Master Servicer is a national banking association
duly organized, validly existing and in good standing under the laws of
the United States, and such Master Servicer is in compliance with the laws
of each State in which any related Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan for
which it is the Master Servicer hereunder and to perform its obligations
under this Agreement, except where the failure to so qualify or comply
would not adversely affect such Master Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement.
(ii) Such Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate
such Master Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or by which
it is bound, which default or breach, in the good faith and reasonable
judgment of such Master Servicer, is likely to affect materially and
adversely the ability of such Master Servicer to perform its obligations
under this Agreement.
(iii) Such Master Servicer has the full power and authority
to enter into and consummate all transactions involving such Master
Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of such Master Servicer, enforceable against
such Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
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(v) Such Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in such Master Servicer's good faith and reasonable judgment,
is likely to affect materially and adversely the ability of such Master
Servicer to perform its obligations under this Agreement.
(vi) No consent, approval, license, authorization or order
of any state or federal court or governmental agency or body is required
for the consummation by such Master Servicer of the transactions
contemplated herein, except for those consents, approvals, licenses,
authorizations or orders that previously have been obtained or where the
lack of such consent, approval, license, authorization or order would not
have a material adverse effect on the ability of such Master Servicer to
perform its obligations under this Agreement, and, except to the extent in
the case of performance, that its failure to be qualified as a foreign
corporation or licensed in one or more states is not necessary for the
performance by it of its obligations hereunder.
(vii) No litigation is pending or, to the best of such
Master Servicer's knowledge, threatened against such Master Servicer that,
if determined adversely to such Master Servicer, would prohibit such
Master Servicer from entering into this Agreement or that, in such Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of such Master Servicer to perform its
obligations under this Agreement.
(viii) Such Master Servicer has errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(d).
(b) The representations and warranties of WFB as a Master Servicer
set forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor to WFB as a Master Servicer shall be deemed to
have made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.07. Representations and Warranties of the General Special
Servicer.
(a) The General Special Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The General Special Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, the General Special Servicer is in compliance with the
laws of each State in which any related Mortgaged Property is located to
the extent necessary to ensure the enforceability of each Mortgage Loan
and to perform its obligations under this Agreement, except where the
failure to so qualify or comply would not adversely affect the General
Special Servicer's ability to perform its obligations under this
Agreement.
(ii) The General Special Servicer's execution and delivery
of, performance under and compliance with this Agreement will not violate
the General Special Servicer's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or by which
it is
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bound, which default or breach, in the good faith and reasonable judgment
of the General Special Servicer, is likely to affect materially and
adversely the ability of the General Special Servicer to perform its
obligations under this Agreement.
(iii) The General Special Servicer has the full power and
authority to enter into and consummate all transactions involving the
General Special Servicer contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the General Special Servicer, enforceable
against the General Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The General Special Servicer is not in violation of,
and its execution and delivery of, performance under and compliance with
the terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the General Special Servicer's good faith
and reasonable judgment, is likely to affect materially and adversely the
ability of the General Special Servicer to perform its obligations under
this Agreement.
(vi) No consent, approval, license, authorization or order
of any state or federal court or governmental agency or body is required
for the consummation by the General Special Servicer of the transactions
contemplated herein, except for those consents, approvals, licenses,
authorizations or orders that previously have been obtained or where the
lack of such consent, approval, license, authorization or order would not
have a material adverse effect on the ability of the General Special
Servicer to perform its obligations under this Agreement.
(vii) No litigation is pending or, to the best of the
General Special Servicer's knowledge, threatened against the General
Special Servicer that, if determined adversely to the General Special
Servicer, would prohibit the General Special Servicer from entering into
this Agreement or that, in the General Special Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the General Special Servicer to perform its obligations under
this Agreement.
(viii) The General Special Servicer has errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(d).
(b) The representations and warranties of the General Special
Servicer set forth in Section 2.07(a) shall survive the execution and delivery
of this Agreement and shall inure to the benefit of the Persons for whose
benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto.
(c) Any successor General Special Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
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SECTION 2.08. Representations and Warranties of the Loan Specific
Special Servicers.
(a) Each Loan Specific Special Servicer hereby represents and
warrants to each of the other parties hereto and for the benefit of the
Certificateholders, as of the date when it is appointed as Loan Specific Special
Servicer hereunder, that:
(i) Such Loan Specific Special Servicer is duly organized,
validly existing and in good standing as an entity under the laws of the
jurisdiction of its organization, and such Loan Specific Special Servicer
is in compliance with the laws of each State in which any related
Mortgaged Property is located to the extent necessary to ensure the
enforceability of the related Mortgage Loan Group and to perform its
obligations under this Agreement, except where the failure to so qualify
or comply would not adversely affect such Loan Specific Special Servicer's
ability to perform its obligations under this Agreement.
(ii) Such Loan Specific Special Servicer's execution and
delivery of, performance under and compliance with this Agreement will not
violate such Loan Specific Special Servicer's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other material instrument to which it is a party or
by which it is bound, which default or breach, in the good faith and
reasonable judgment of such Loan Specific Special Servicer, is likely to
affect materially and adversely the ability of such Loan Specific Special
Servicer to perform its obligations under this Agreement.
(iii) Such Loan Specific Special Servicer has the requisite
power and authority to enter into and consummate all transactions
involving such Loan Specific Special Servicer contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of such Loan Specific Special Servicer,
enforceable against such Loan Specific Special Servicer in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
banks, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) Such Loan Specific Special Servicer is not in
violation of, and its execution and delivery of, performance under and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in such Loan Specific Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely the ability of such Loan Specific Special
Servicer to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by such Loan Specific Special Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, license, authorization or order would not have a
material adverse effect on the ability of such Loan Specific Special
Servicer to perform its obligations under this Agreement.
(vii) No litigation is pending or, to the best of such Loan
Specific Special Servicer's knowledge, threatened against such Loan
Specific Special Servicer that, if determined adversely to such Loan
Specific Special Servicer, would prohibit such Loan Specific Special
Servicer from entering into this Agreement or that, in such Loan Specific
Special Servicer's good faith and reasonable judgment, is likely to
materially and
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adversely affect the ability of such Loan Specific Special Servicer to
perform its obligations under this Agreement.
(viii) Such Loan Specific Special Servicer has errors and
omissions insurance in the amounts and the coverage required by Section
3.07(d).
(b) The representations and warranties of each Loan Specific
Special Servicer set forth in Section 2.08(a) shall survive the execution and
delivery of this Agreement and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto.
(c) Any successor Loan Specific Special Servicer shall be deemed
to have made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.09. Representations and Warranties of the Certificate
Administrator.
(a) The Certificate Administrator hereby represents and warrants
to each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Certificate Administrator is duly organized,
validly existing and in good standing as a national banking association
under the laws of the United States and possesses all licenses and
authorizations necessary to the performance of its obligations under this
Agreement.
(ii) The Certificate Administrator's execution and delivery
of, performance under and compliance with this Agreement will not violate
the Certificate Administrator's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or by which
it is bound, which default or breach, in the good faith and reasonable
judgment of the Certificate Administrator, is likely to affect materially
and adversely the ability of the Certificate Administrator to perform its
obligations under this Agreement.
(iii) The Certificate Administrator has the requisite power
and authority to enter into and consummate all transactions involving the
Certificate Administrator 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 Certificate Administrator, enforceable
against the Certificate Administrator in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Certificate Administrator is not in violation of,
and its execution and delivery of, performance under and compliance with
the terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Certificate Administrator's reasonable
judgment, is
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likely to affect materially and adversely the ability of the Certificate
Administrator to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by the Certificate Administrator of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained.
(vii) No litigation is pending or, to the best of the
Certificate Administrator's knowledge, threatened against the Certificate
Administrator that, if determined adversely to the Certificate
Administrator, would prohibit the Certificate Administrator from entering
into this Agreement or that, in the Certificate Administrator's reasonable
judgment, is likely to materially and adversely affect the ability of the
Certificate Administrator to perform its obligations under this Agreement.
(viii) The Certificate Administrator is eligible to act in
such capacity hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Certificate
Administrator set forth in Section 2.09(a) shall survive the execution and
delivery of this Agreement and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto.
(c) Any successor Certificate Administrator shall be deemed to
have made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.09(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.09(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.10. Representations and Warranties of the Tax
Administrator.
(a) The Tax Administrator hereby represents and warrants to, and
covenants with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Tax Administrator is duly organized, validly
existing and in good standing as a national banking association under the
laws of the United States and possesses all licenses and authorizations
necessary to the performance of its obligations under this Agreement.
(ii) The Tax Administrator's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Tax Administrator's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in a material breach of, any material agreement
or other material instrument to which it is a party or by which it is
bound, which default or breach, in the reasonable judgment of the Tax
Administrator, is likely to affect materially and adversely the ability of
the Tax Administrator to perform its obligations under this Agreement.
(iii) The Tax Administrator has the requisite 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 the valid,
legal and binding obligation of the Tax Administrator, enforceable against
the Tax Administrator in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency,
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reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
banks, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Tax Administrator is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Tax Administrator's reasonable judgment, is likely to
affect materially and adversely the ability of the Tax Administrator to
perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by the Tax Administrator of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained.
(vii) No litigation is pending or, to the best of the Tax
Administrator's knowledge, threatened against the Tax Administrator that,
if determined adversely to the Tax Administrator, would prohibit the Tax
Administrator from entering into this Agreement or that, in the Tax
Administrator's reasonable judgment, is likely to materially and adversely
affect the ability of the Tax Administrator to perform its obligations
under this Agreement.
(viii) The Tax Administrator is eligible to act in such
capacity hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Tax Administrator
set forth in Section 2.10(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto and the Controlling Class Representative.
(c) Any successor to the Tax Administrator shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.10(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.10(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.11. Representations, Warranties and Covenants of the
Trustee.
(a) The Trustee hereby represents and warrants to, and covenants
with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States and is, shall be or, if necessary, shall appoint a
co-trustee that is, in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan (insofar as such enforceability is
dependent upon compliance by the Trustee with such laws) and to perform
its obligations under this Agreement and possesses all licenses and
authorizations necessary to the performance of its obligations under this
Agreement.
(ii) The Trustee's execution and delivery of, performance
under and compliance with this Agreement, will not violate the Trustee's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which breach or
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default, in the good faith and reasonable judgment of the Trustee is
likely to affect materially and adversely the ability of the Trustee to
perform its obligations under this Agreement.
(iii) The Trustee has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Trustee, enforceable against the
Trustee in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights generally and, in
particular, the rights of creditors of national banking associations, and
(B) general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution
and delivery of, performance under and compliance with this Agreement will
not constitute a violation of, any law, any order or decree of any court
or arbiter, or any order, regulation or demand of any federal, state or
local governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely the ability of the Trustee to perform its
obligations under this Agreement.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein,
except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee that, if determined
adversely to the Trustee, would prohibit the Trustee from entering into
this Agreement or that, in the Trustee's good faith and reasonable
judgment, is likely to materially and adversely affect the ability of the
Trustee to perform its obligations under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations, warranties and covenants of the Trustee
set forth in Section 2.11(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any such representations, warranties and covenants
that materially and adversely affects the interests of the Certificateholders or
any party hereto, the party discovering such breach shall give prompt written
notice thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.11(a), subject to such appropriate modifications to the
representation, warranty and covenant set forth in Section 2.11(a)(i) to
accurately reflect such successor's jurisdiction of organization and whether it
is a corporation, partnership, bank, association or other type of organization.
SECTION 2.12. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Residual Interest; Certain
Matters Involving REMIC I.
(a) It is the intention of the parties hereto that the following
segregated pool of assets constitute a REMIC for federal income tax purposes
and, further, that such segregated pool of assets be designated as "REMIC I":
(i) the Pooled Mortgage Loans that are from time to time subject to this
Agreement, together with (A) all payments under and proceeds of such Pooled
Mortgage Loans received after the Closing Date or, in the case of any such
Pooled Mortgage Loan that is a Replacement Pooled Mortgage Loan, after the
related date of substitution (other than scheduled payments of interest and
principal due on or before the respective Cut-off Dates for such Pooled Mortgage
Loans or, in the case of any
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such Pooled Mortgage Loan that is a Replacement Pooled Mortgage Loan, on or
before the related date of substitution, and exclusive of any such amounts that
constitute Excess Servicing Fees, Post-ARD Additional Interest and/or 0000-0000
Xxxxxx Xxxxxx Additional Interest), and (B) all rights of the holder of such
Pooled Mortgage Loans under the related Mortgage Loan Documents and in and to
any related Additional Collateral; (ii) any REO Property acquired in respect of
any Pooled Mortgage Loan (or, in the case of any REO Property related to a
Non-Trust-Serviced Pooled Mortgage Loan, the beneficial interest of the holder
of the related Pooled Mortgage Loan in such REO Property); (iii) such funds and
assets as from time to time are deposited in the Collection Accounts (but not in
any Companion Note Custodial Account or any Subordinate Note Custodial Account),
the Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Account and, if established (but, in the case of any such account
established with respect to a Serviced Mortgage Loan Group, subject to the
rights of the Serviced Non-Pooled Mortgage Loan Noteholders), the REO Accounts
(exclusive of any such amounts that constitute Excess Servicing Fees, Post-ARD
Additional Interest and/or 0000-0000 Xxxxxx Xxxxxx Additional Interest); and
(iv) the rights of the Depositor under Sections 2, 3, 4 (other than Section
4(c)) and 5 (and, to the extent related to the foregoing, Sections 9, 10, 11,
12, 13, 14, 15, 17 and 18) of each Pooled Mortgage Loan Purchase Agreement. The
Closing Date is hereby designated as the "Startup Day" of REMIC I within the
meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment to the Trustee of the
Original Pooled Mortgage Loans and certain related assets, pursuant to Section
2.01(b), and in exchange therefor, the REMIC I Regular Interests and the REMIC I
Residual Interest shall be issued. A single separate REMIC I Regular Interest
shall be issued with respect to each Original Pooled Mortgage Loan. For purposes
of this Agreement each REMIC I Regular Interest shall relate to the Original
Pooled Mortgage Loan in respect of which it was issued, to each Replacement
Pooled Mortgage Loan (if any) substituted for such Original Pooled Mortgage Loan
and to each REO Pooled Mortgage Loan deemed outstanding with respect to any REO
Property acquired in respect of such Original Pooled Mortgage Loan or any such
Replacement Pooled Mortgage Loan (or, in the case of any REO Property related to
a Non-Trust-Serviced Pooled Mortgage Loan, the beneficial interest of the holder
of the related Pooled Mortgage Loan in any related REO Property). Neither the
REMIC I Residual Interest nor any of the REMIC I Regular Interests shall be
certificated. The REMIC I Regular Interests and the REMIC I Residual Interest
shall collectively constitute the entire beneficial ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
I Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC I. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC I (within the meaning of Treasury
Regulations Section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be the
identification number for the related Original Pooled Mortgage Loan set forth in
the Pooled Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Principal Balance
of the related Original Pooled Mortgage Loan (as specified in the Pooled
Mortgage Loan Schedule). On each Distribution Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall be permanently reduced by any
distributions of principal deemed made with respect to such REMIC I Regular
Interest on such Distribution Date pursuant to Section 4.01(j) and shall be
further adjusted in the manner and to the extent provided in Section 4.04(c).
Except as provided in the preceding sentence and except to the extent of the
recovery of amounts previously allocated as a Realized Loss as a result of the
reimbursement from principal collections of Nonrecoverable Advances, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall not
otherwise be increased or reduced. Deemed distributions to REMIC II in
reimbursement of any Realized Losses and Additional Trust Fund Expenses
previously deemed allocated to a REMIC I Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC I Regular Interest.
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(f) The per annum rate at which each REMIC I Regular Interest
shall accrue interest during each Interest Accrual Period is herein referred to
as its "REMIC I Remittance Rate". The REMIC I Remittance Rate in respect of any
particular REMIC I Regular Interest, for any Interest Accrual Period, shall
equal: (A) if the related Original Pooled Mortgage Loan is or was, as the case
may be, a 30/360 Mortgage Loan, the related Net Mortgage Rate then in effect
(including as a result of any step-up provision) for the related Original Pooled
Mortgage Loan under the original terms of such Pooled Mortgage loan in effect as
of the Closing Date (without regard to any modifications, extensions, waivers or
amendments of such Pooled Mortgage Loan subsequent to the Closing Date, whether
entered into by the applicable Master Servicer or the applicable Special
Servicer or in connection with any bankruptcy, insolvency or other similar
proceeding involving the related Borrower) and (B) if the related Original
Pooled Mortgage Loan is or was, as the case may be, an Actual/360 Mortgage Loan,
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.
The "Adjusted Actual/360 Accrued Interest Amount" with respect to
any REMIC I Regular Interest referred to in clause (B) of the second sentence of
the prior paragraph, for any Interest Accrual Period, is an amount of interest
equal to the product of (a) the Net Mortgage Rate then in effect (including as a
result of any step-up provision) for the related Pooled Mortgage Loan under the
original terms of such Pooled Mortgage loan in effect as of the Closing Date
(without regard to any modifications, extensions, waivers or amendments of such
Pooled Mortgage Loan subsequent to the Closing Date, whether entered into by the
applicable Master Servicer or the applicable Special Servicer or in connection
with any bankruptcy, insolvency or other similar proceeding involving the
related Borrower), 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 REMIC I
Regular Interest immediately prior to the Distribution Date that corresponds to
such Interest Accrual Period; provided that, if the subject Interest Accrual
Period occurs during (x) December of 2008 or December of any year thereafter
that does not immediately precede a leap year or (y) January of 2008 or January
of any year thereafter, then the amount of interest calculated with respect to
the subject 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 (and the fraction described in clause (B) of the
second sentence of the preceding paragraph shall be adjusted accordingly), with
respect to the related Pooled Mortgage Loan (or any successor REO Pooled
Mortgage Loan with respect thereto) transferred, in accordance with Section
3.04(c), from the Distribution Account to the Interest Reserve Account on the
Master Servicer Remittance Date that occurs immediately following the end of
such Interest Accrual Period; and provided, further, that, if the subject
Interest Accrual Period occurs during February of 2008 or February of any year
thereafter (or any December or January preceding the month of the Final
Distribution Date), then the amount of interest calculated with respect to the
subject 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 (and the fraction described in clause (B) of the
second sentence of the preceding paragraph shall be adjusted accordingly), with
respect to the related Pooled Mortgage Loan (or any successor REO Pooled
Mortgage Loan with respect thereto) transferred, in accordance with Section
3.05(c), from the Interest Reserve Account to the Distribution Account on the
Master Servicer Remittance Date that occurs immediately following the end of
such Interest Accrual Period.
(g) Each REMIC I Regular Interest shall bear interest. Such
interest shall be calculated on a 30/360 Basis and, during each Interest Accrual
Period, such interest shall accrue at the REMIC I Remittance Rate with respect
to such REMIC I Regular Interest for such Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to the related Distribution Date. The total amount of interest
accrued with respect to each REMIC I Regular Interest during each Interest
Accrual Period is referred to herein as its "Uncertificated Accrued Interest"
for such Interest Accrual Period. The portion of the Uncertificated Accrued
Interest with respect to any REMIC I Regular Interest for any Interest Accrual
Period that shall be distributable to REMIC II, as the holder of such REMIC I
Regular Interest, on the related Distribution Date pursuant to Section 4.01(j),
shall be an amount (herein referred to as the "Uncertificated Distributable
Interest" with respect to such REMIC I Regular Interest for the related
Distribution Date) equal to (i) the Uncertificated Accrued Interest with respect
to such REMIC I Regular Interest for the related
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Interest Accrual Period, reduced (to not less than zero) by (ii) the portion of
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date that
is allocable to such REMIC I Regular Interest. For purposes of the foregoing,
the Net Aggregate Prepayment Interest Shortfall, if any, for each Distribution
Date shall be allocated among all the REMIC I Regular Interests on a pro rata
basis in accordance with their respective amounts of Uncertificated Accrued
Interest for the related Interest Accrual Period. If the entire Uncertificated
Distributable Interest with respect to any REMIC I Regular Interest for any
Distribution Date is not deemed distributed to REMIC II, as the holder of such
REMIC I Regular Interest, on such Distribution Date pursuant to Section 4.01(j),
then the unpaid portion of such Uncertificated Distributable Interest shall be
distributable with respect to such REMIC I Regular Interest for future
Distribution Dates as provided in such Section 4.01(j).
(h) Solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC I Residual Interest will not have a principal
balance and will not bear interest.
SECTION 2.13. Conveyance of the REMIC I Regular Interests;
Acceptance of the REMIC I Regular Interests 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 of its right, title and interest in and to the REMIC I Regular Interests to
the Trustee for the benefit of the Holders of the REMIC III Regular Interests
and the Class R Certificates. 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 REMIC III Regular Interests and the Class R Certificates.
SECTION 2.14. Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest; Certain
Matters Involving REMIC II.
(a) It is the intention of the parties hereto that the segregated
pool of assets consisting of the REMIC I Regular Interests constitute a REMIC
for federal income tax purposes and, further, that such segregated pool of
assets be designated as "REMIC II". The Closing Date is hereby designated as the
"Startup Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular
Interests to the Trustee pursuant to Section 2.13 and in exchange therefor, the
REMIC II Regular Interests and the REMIC II Residual Interest shall be issued.
Neither the REMIC II Residual Interest nor any of the REMIC II Regular Interests
shall be certificated. The REMIC II Regular Interests and the REMIC II Residual
Interest shall collectively constitute the entire beneficial ownership of REMIC
II.
(c) The REMIC II Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
II Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC II (within the meaning of
Treasury Regulations Section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests will have the alphabetic or
alphanumeric designations indicated in the table set forth in the Preliminary
Statement under the caption "REMIC II".
(e) Each REMIC II Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC II Regular Interest shall equal the amount set forth opposite such
REMIC II Regular Interest in the table set forth in the Preliminary Statement
under the caption "REMIC
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II". On each Distribution Date, the Uncertificated Principal Balance of each
REMIC II Regular Interest shall be permanently reduced by any distributions of
principal deemed made with respect to such REMIC II Regular Interest on such
Distribution Date pursuant to Section 4.01(i) and shall be further adjusted in
the manner and to the extent provided in Section 4.04(b). Except as provided in
the preceding sentence and except to the extent of the recovery of amounts
previously allocated as a Realized Loss as a result of the reimbursement from
principal collections of Nonrecoverable Advances, the Uncertificated Principal
Balance of each REMIC II Regular Interest shall not otherwise be increased or
reduced. Deemed distributions to REMIC III in reimbursement of any Realized
Losses and Additional Trust Fund Expenses previously deemed allocated to a REMIC
II Regular Interest, shall not constitute deemed distributions of principal and
shall not result in any reduction of the Uncertificated Principal Balance of
such REMIC II Regular Interest.
(f) The per annum rate at which each REMIC II Regular Interest
shall accrue interest during each Interest Accrual Period is herein referred to
as its "REMIC II Remittance Rate". The REMIC II Remittance Rate with respect to
each REMIC II Regular Interest, for any Interest Accrual Period, is the Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period. The "Weighted
Average REMIC I Remittance Rate" with respect to any Interest Accrual Period is
the rate per annum equal to the weighted average, expressed as a percentage and
rounded to six decimal places, of the REMIC I Remittance Rates applicable to the
respective 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.
(g) Each REMIC II Regular Interest shall bear interest. Such
interest shall be calculated on a 30/360 Basis and, during each Interest Accrual
Period, such interest shall accrue at the REMIC II Remittance Rate with respect
to such REMIC II Regular Interest for such Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC II Regular Interest outstanding
immediately prior to the related Distribution Date. The total amount of interest
accrued with respect to each REMIC II Regular Interest during each Interest
Accrual Period is referred to herein as its "Uncertificated Accrued Interest"
for such Interest Accrual Period. The portion of the Uncertificated Accrued
Interest with respect to any REMIC II Regular Interest for any Interest Accrual
Period that shall be distributable to REMIC III, as the holder of such REMIC II
Regular Interest, on the related Distribution Date pursuant to Section 4.01(i),
shall be an amount (herein referred to as the "Uncertificated Distributable
Interest" with respect to such REMIC II Regular Interest for the related
Distribution Date) equal to (i) the Uncertificated Accrued Interest with respect
to such REMIC II Regular Interest for the related Interest Accrual Period,
reduced (to not less than zero) by (ii) the portion of any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date that is allocable to
such REMIC II Regular Interest. For purposes of the foregoing, the Net Aggregate
Prepayment Interest Shortfall, if any, for each Distribution Date shall be
allocated among all the REMIC II Regular Interests on a pro rata basis in
accordance with their respective amounts of Uncertificated Accrued Interest for
the related Interest Accrual Period. If the entire Uncertificated Distributable
Interest with respect to any REMIC II Regular Interest for any Distribution Date
is not deemed distributed to REMIC III, as the holder of such REMIC II Regular
Interest, on such Distribution Date pursuant to Section 4.01(i), then the unpaid
portion of such Uncertificated Distributable Interest shall be distributable
with respect to such REMIC II Regular Interest for future Distribution Dates as
provided in such Section 4.01(i).
(h) Solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC II Residual Interest shall not have a principal
balance and shall not bear interest.
SECTION 2.15. Conveyance of the REMIC II Regular Interests;
Acceptance of the REMIC II Regular Interests 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 of its right, title and interest in and to the REMIC II Regular Interests to
the Trustee for the benefit of the Holders of the REMIC III Regular Interests
and the Class R 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
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trust for the exclusive use and benefit of all present and future Holders of the
REMIC III Regular Interests and the Class R Certificates.
SECTION 2.16. Creation of REMIC III; Issuance of the REMIC III
Regular Interests, the REMIC III Components and the
REMIC III Residual Interest; Certain Matters
Involving REMIC III.
(a) It is the intention of the parties hereto that the segregated
pool of assets consisting of the REMIC II Regular Interests constitute a REMIC
for federal income tax purposes and, further, that such segregated pool of
assets be designated as "REMIC III". The Closing Date is hereby designated as
the "Startup Day" of REMIC III within the meaning of Section 860G(a)(9) of the
Code.
(b) Concurrently with the assignment of the REMIC II Regular
Interests to the Trustee pursuant to Section 2.15 and in exchange therefor, the
REMIC III Residual Interest shall be issued and the Certificate Administrator
shall execute, and the Authenticating Agent shall authenticate and deliver, to
or upon the order of the Depositor, the Class A-1, Class A-2, Class A-3, Class
A-AB, Class A-4, Class A-1A, Class A-M, Class AM-A, Class A-J, Class AJ-A, Class
X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class
S Certificates in authorized denominations. The Class X-1 Certificates shall
collectively represent all of the REMIC III Components whose designations are
described in the first sentence under the caption "REMIC III--Designations of
the REMIC III Components" in the Preliminary Statement hereto and the Class X-2
Certificates shall collectively represent all of the REMIC III Components whose
designations are described in the second sentence under the caption "REMIC
III--Designations of the REMIC III Components" in the Preliminary Statement
hereto. The REMIC III Residual Interest shall not be certificated. The interests
evidenced by the REMIC III Regular Interests, together with the REMIC III
Residual Interest, shall collectively constitute the entire beneficial ownership
of REMIC III.
(c) The REMIC III Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
III Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC III. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC III (within the meaning of
Treasury Regulations Section 1.860D-1(b)(1)).
(d) [Reserved].
(e) Each Class of Principal Balance REMIC III Regular Interests
shall have a Class Principal Balance. As of the Closing Date, the Class
Principal Balance of each such Class of Principal Balance REMIC III Regular
Interests shall equal the amount set forth opposite such Class of Certificates
in the table set forth in the Preliminary Statement under the caption "REMIC
III". On each Distribution Date, the Class Principal Balance of each such Class
of Principal Balance REMIC III Regular Interests shall be permanently reduced by
any distributions of principal made in respect of such Class on such
Distribution Date pursuant to Section 4.01(a) and shall be further adjusted in
the manner and to the extent provided in Section 4.04(a). Except as provided in
the preceding sentence and except to the extent of the recovery of amounts
previously allocated as a Realized Loss as a result of the reimbursement from
principal collections of Nonrecoverable Advances, the Class Principal Balance of
each such Class of Principal Balance REMIC III Regular Interests shall not
otherwise be increased or reduced. Distributions in reimbursement of the Holders
of any such Class of Principal Balance REMIC III Regular Interests for
previously allocated Realized Losses and Additional Trust Fund Expenses shall
not constitute distributions of principal and shall not result in any reduction
of the Certificate Principal Balances of such Principal Balance REMIC III
Regular Interests or of the related Class Principal Balance of such Class of
Principal Balance REMIC III Regular Interest.
The Interest Only Certificates shall not have principal balances.
For purposes of accruing interest, however, each Class of Interest Only
Certificates shall have or be deemed to have a Class Notional Amount that is, as
of any date of determination, equal to: (i) in the case of the Class X-1
Certificates, the total of the then Component Notional Amounts of the REMIC III
Components of the Class X-1 Certificates; and (ii) in the case of the Class X-2
Certificates, (A) from the Closing Date through and including the Distribution
Date in December 2015, the aggregate of the
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Component Notional Amounts of those REMIC III Components of the Class X-2
Certificates for which the related Class X-2 Termination Date has not occurred
as of such date of determination; and (B) subsequent to the Distribution Date in
December 2015, zero ($0).
None of the REMIC III Components of the Class X-1 Certificates or
the REMIC III Components of the Class X-2 Certificates shall have a principal
balance. For purposes of accruing interest, however, each REMIC III Component of
the Class X-1 Certificates and each REMIC III Component of the Class X-2
Certificates shall have a Component Notional Amount. The Component Notional
Amount of each REMIC III Component of the Class X-1 Certificates is, as of any
date of determination, equal to the then current Uncertificated Principal
Balance of the REMIC II Regular Interest that is the Corresponding REMIC II
Regular Interest for such REMIC III Component. The Component Notional Amount of
each REMIC III Component of the Class X-2 Certificates is, as of any date of
determination, equal to the then current Uncertificated Principal Balance of the
REMIC II Regular Interest that is the Corresponding REMIC II Regular Interest
for such REMIC III Component.
(f) Each Class of REMIC III Regular Interests shall have or be
deemed to have a Pass-Through Rate. In each such case, the "Pass-Through Rate"
for any Interest Accrual Period shall equal: (a) with respect to the Class A-1
Certificates, an annual rate equal to 5.038% per annum; (b) with respect to the
Class A-2 Certificates, an annual rate equal to 5.613% per annum; (c) with
respect to the Class A-3 Certificates, an annual rate equal to 5.957% per annum;
(d) with respect to the Class A-AB Certificates, an annual rate equal to 5.926%
per annum; (e) with respect to the Class A-4 Certificates, an annual rate equal
to 5.700% per annum; (f) with respect to the Class A-1A Certificates, an annual
rate equal to 5.602% per annum; (g) with respect to the Class A-M Certificates,
an annual rate equal to the lesser of (i) 6.084% per annum and (ii) the REMIC II
Remittance Rate in respect of REMIC II Regular Interest A-M for the subject
Interest Accrual Period; (h) with respect to the Class AM-A Certificates, an
annual rate equal to the lesser of (i) 6.087% per annum and (ii) the REMIC II
Remittance Rate in respect of REMIC II Regular Interest AM-A for the subject
Interest Accrual Period; (i) with respect to the Class A-J Certificates, an
annual rate equal to the REMIC II Remittance Rate in respect of REMIC II Regular
Interest A-J for the subject Interest Accrual Period; (j) with respect to the
Class AJ-A Certificates, an annual rate equal to the REMIC II Remittance Rate in
respect of REMIC II Regular Interest AJ-A for the subject Interest Accrual
Period; (k) with respect to the Class B Certificates, an annual rate equal to
the REMIC II Remittance Rate in respect of REMIC II Regular Interest B for the
subject Interest Accrual Period; (l) with respect to the Class C Certificates,
an annual rate equal to the REMIC II Remittance Rate in respect of REMIC II
Regular Interest C for the subject Interest Accrual Period; (m) with respect to
the Class D Certificates, an annual rate equal to the REMIC II Remittance Rate
in respect of REMIC II Regular Interest D for the subject Interest Accrual
Period; (n) with respect to the Class E Certificates, an annual rate equal to
the REMIC II Remittance Rate in respect of REMIC II Regular Interest E for the
subject Interest Accrual Period; (o) with respect to the Class F Certificates,
an annual rate equal to the REMIC II Remittance Rate in respect of REMIC II
Regular Interest F for the subject Interest Accrual Period; (p) with respect to
the Class G Certificates, an annual rate equal to the REMIC II Remittance Rate
in respect of REMIC II Regular Interest G for the subject Interest Accrual
Period; (q) with respect to the Class H Certificates, an annual rate equal to
the REMIC II Remittance Rate in respect of REMIC II Regular Interest H for the
subject Interest Accrual Period; (r) with respect to the Class J Certificates,
an annual rate equal to the REMIC II Remittance Rate in respect of REMIC II
Regular Interest J for the subject Interest Accrual Period; (s) with respect to
the Class K Certificates, an annual rate equal to the REMIC II Remittance Rate
in respect of REMIC II Regular Interest K for the subject Interest Accrual
Period; (t) with respect to the Class L Certificates, an annual rate equal to
the lesser of (i) 4.664% per annum and (ii) the REMIC II Remittance Rate in
respect of REMIC II Regular Interest L for the subject Interest Accrual Period;
(u) with respect to the Class M Certificates, an annual rate equal to the lesser
of (i) 4.664% per annum and (ii) the REMIC II Remittance Rate in respect of
REMIC II Regular Interest M for the subject Interest Accrual Period; (v) with
respect to the Class N Certificates, an annual rate equal to the lesser of (i)
4.664% per annum and (ii) the REMIC II Remittance Rate in respect of REMIC II
Regular Interest N for the subject Interest Accrual Period; (w) with respect to
the Class O Certificates, an annual rate equal to the lesser of (i) 4.664% per
annum and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular
Interest O for the subject Interest Accrual Period; (x) with respect to the
Class P Certificates, an annual rate equal to the lesser of (i) 4.664% per annum
and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest P
for the subject Interest Accrual Period; (y) with respect to the Class Q
Certificates, an annual rate equal to the lesser of (i) 4.664%
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per annum and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular
Interest Q for the subject Interest Accrual Period; (z) with respect to the
Class S Certificates, an annual rate equal to the lesser of (i) 4.664% per annum
and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest S
for the subject Interest Accrual Period; (aa) with respect to the Class X-1
Certificates, an annual rate equal to the weighted average (expressed as a
percentage and rounded to at least six decimal places) of the Class X-1 Strip
Rates applicable to the respective REMIC III Components of the Class X-1
Certificates for such Interest Accrual Period, weighted on the basis of the
respective Component Notional Amounts of such REMIC III Components outstanding
immediately prior to the related Distribution Date; and (bb) with respect to the
Class X-2 Certificates, an annual rate equal to the weighted average (expressed
as a percentage and rounded to at least six decimal places) of the Class X-2
Strip Rates applicable to the respective REMIC III Components of the Class X-2
Certificates for such Interest Accrual Period that are to be taken into account
in such calculation as set forth in the immediately succeeding sentence,
weighted on the basis of the respective Component Notional Amounts of such REMIC
III Components outstanding immediately prior to the related Distribution Date;
provided, however, that for each Interest Accrual Period following the Interest
Accrual Period related to the Distribution Date in December 2015, the
Pass-Through Rate of the Class X-2 Certificates shall equal 0% per annum. For
purposes of clause (bb) of the immediately preceding sentence, the Pass-Through
Rate of the Class X-2 Certificates, for the initial Interest Accrual Period and
each Interest Accrual Period thereafter through and including the Interest
Accrual Period related to the Distribution Date in December 2015, shall be
calculated taking into account the respective Class X-2 Strip Rates of only
those REMIC III Components of the Class X-2 Certificates for which such Interest
Accrual Period relates to a Distribution Date that occurs on or before the
related Class X-2 Termination Date.
The "Class X-1 Strip Rate" for each REMIC III Component of the Class
X-1 Certificates, with respect to each Interest Accrual Period, is a rate per
annum equal to the greater of (I) zero and (II) either:
(A) if both (x) the Corresponding REMIC II Regular Interest
for such REMIC III Component of the Class X-1
Certificates also constitutes a Corresponding REMIC II
Regular Interest for a REMIC III Component of the Class
X-2 Certificates and (y) such Interest Accrual Period
relates to a Distribution Date occurring on or before
the Class X-2 Termination Date for such Corresponding
REMIC II Regular Interest for such REMIC III Component
of the Class X-2 Certificates, the excess, if any, of
(i) the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period, over (ii) the greater of
(1) the Reference Rate for such Interest Accrual Period
and (2) the Pass-Through Rate in effect for the related
Distribution Date for the Corresponding Class of
Principal Balance REMIC III Regular Interests, or
(B) if either (1) the Corresponding REMIC II Regular
Interest for such REMIC III Component of the Class X-1
Certificates does not constitute a Corresponding REMIC
II Regular Interest for a Component of the Class X-2
Certificates or (2) such Interest Accrual Period relates
to a Distribution Date occurring after the Class X-2
Termination Date for such Corresponding REMIC II Regular
Interest of the Class X-2 Certificates, the excess, if
any, of (i) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period, over (ii) the
Pass-Through Rate in effect for the related Distribution
Date for the Corresponding Class of Principal Balance
REMIC III Regular Interests.
The "Class X-2 Strip Rate" for each REMIC III Component of the Class
X-2 Certificates, (A) with respect to each Interest Accrual Period related to a
Distribution Date occurring on or before the related Class X-2 Termination Date
for such REMIC III Component, is a rate per annum equal to the greater of (I)
zero and (II) the excess, if any, of (i) the lesser of (x) the Reference Rate
for such Interest Accrual Period and (y) the Weighted Average REMIC I Remittance
Rate for such Interest Accrual Period, over (ii) the Pass-Through Rate in effect
during such Interest Accrual Period for the Corresponding Class of Principal
Balance REMIC III Regular Interests, and (B) with respect to each Interest
Accrual Period related to a Distribution Date occurring after the related Class
X-2 Termination Date for such REMIC III Component, is a rate per annum equal to
zero.
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(g) Solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of REMIC
III Regular Interests shall be the Rated Final Distribution Date.
(h) The REMIC III Residual Interest shall not have a principal
balance and shall not bear interest.
SECTION 2.17. Acceptance of Grantor Trusts; Issuance of the Class V,
Class R Certificates.
(a) It is the intention of the parties hereto that the segregated
pool of assets consisting of any collections of Post-ARD Additional Interest
Received by the Trust with respect to the Pooled Mortgage Loans that are ARD
Mortgage Loans and/or any successor REO Pooled Mortgage Loans with respect
thereto constitute a Grantor Trust for federal income tax purposes and, further,
that such segregated pool of assets be designated as "Grantor Trust V" and that
the affairs of such portion of the Trust Fund shall be conducted so as to
qualify as a Grantor Trust. The provisions of this Agreement shall be
interpreted consistently with the foregoing intention. The Trustee, by its
execution and delivery hereof, acknowledges the assignment to it of the assets
of Grantor Trust V and declares that it holds and will hold 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 the Trustee of the assets
included in Grantor Trust V, 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 the
entire beneficial ownership of Grantor Trust V and initially registered in the
name of Centerline REIT Inc. The rights of the Holders of the Class V
Certificates to receive distributions from the proceeds of Grantor Trust V, and
all ownership interests of such Holders in and to such distributions, shall be
as set forth in this Agreement.
(b) The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all right, title and interest of the Depositor in and to the REMIC I
Residual Interest, the REMIC II Residual Interest and the REMIC III Residual
Interest to the Trustee for the benefit of the Holders of the Class R
Certificates. It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC I Residual Interest, the REMIC II Residual
Interest and the REMIC III Residual Interest constitute a Grantor Trust for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "Grantor Trust R" and that the affairs of such portion of the
Trust Fund shall be conducted so as to qualify as a Grantor Trust. The
provisions of this Agreement shall be interpreted consistently with the
foregoing intention. The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of Grantor Trust R and declares
that it holds and will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class R Certificates.
Concurrently with the assignment to the Trustee of the assets included in
Grantor Trust R, the Certificate Registrar shall execute, and the Authenticating
Agent shall authenticate and deliver, to or upon the order of the Depositor, the
Class R Certificates in authorized denominations evidencing the entire
beneficial ownership of Grantor Trust R. The rights of the Holders of the Class
R Certificates to receive distributions from the proceeds of Grantor Trust R,
and all ownership interests of such Holders in and to such distributions, shall
be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.
(a) Each Master Servicer shall be obligated to service and
administer the Serviced Mortgage Loans opposite which such Master Servicer's
name is set forth on the Pooled Mortgage Loan Schedule and any Replacement
Pooled Mortgage Loans delivered in replacement thereof as contemplated in
Section 2.03 and shall be deemed to be the "applicable Master Servicer" with
respect to any REO Property acquired in respect of any such Mortgage Loan. Each
of the Master Servicers and each Special Servicer shall service and administer
the Serviced Mortgage Loans and any Administered REO Properties that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, and in the best interests and for the benefit of the Certificateholders
(or, in the case of any Serviced Mortgage Loan Group, of the Certificateholders
and the related Serviced Non-Pooled Mortgage Loan Noteholder(s)), as a
collective whole, in accordance with any and all applicable laws, the terms of
this Agreement, and the terms of the respective Serviced Mortgage Loans and, to
the extent consistent with the foregoing, in accordance with the Servicing
Standard. In clarification of, and neither in addition to nor in deletion of the
duties and obligations of the Master Servicers or the Special Servicers pursuant
to this Agreement, no provision herein contained shall be construed as an
express or implied guarantee by either Master Servicer or any Special Servicer
of the collectibility or recoverability of payments on the Mortgage Loans or
shall be construed to impair or adversely affect any rights or benefits provided
by this Agreement to such Master Servicer or such Special Servicer (including
with respect to Master Servicing Fees or the right to be reimbursed for
Advances). Any provision in this Agreement for any Advance by a Master Servicer,
a Special Servicer or the Trustee is intended solely to provide liquidity for
the benefit of the Certificateholders and, if applicable, the Serviced
Non-Pooled Mortgage Loan Noteholders, and not as credit support or otherwise to
impose on any such Person the risk of loss with respect to one or more of the
Mortgage Loans. No provision hereof shall be construed to impose liability on
any Master Servicer or Special Servicer for the reason that any recovery to the
Certificateholders (or, in the case of any Serviced Mortgage Loan Group, to the
Certificateholders and the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)) in respect of a Mortgage Loan at any time after a determination
of present value recovery made in its reasonable and good faith judgment in
accordance with the Servicing Standard by such Master Servicer or Special
Servicer hereunder at any time is less than the amount reflected in such
determination. Without limiting the foregoing, and subject to Section 3.21, (i)
each Master Servicer shall service and administer all Performing Serviced
Mortgage Loans for which it is the Master Servicer, (ii) each Special Servicer
shall service and administer (x) each Serviced Mortgage Loan (other than a
Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred and
for which it is the applicable Special Servicer, and (y) each Administered REO
Property for which it is the applicable Special Servicer; provided, however,
that the applicable Master Servicer shall continue to (A) make P&I Advances
required hereunder with respect to each Pooled Mortgage Loan for which it is the
applicable Master Servicer that constitutes a Specially Serviced Mortgage Loan
and each successor REO Pooled Mortgage Loan in respect thereof, (B) make
Servicing Advances required hereunder with respect to any Specially Serviced
Mortgage Loans and Administered REO Properties (and related REO Pooled Mortgage
Loans) for which it is the applicable Master Servicer, (C) receive payments,
collect information and deliver reports to the Certificate Administrator and the
Trustee required hereunder with respect to any Specially Serviced Mortgage Loans
and Administered REO Properties (and the related REO Mortgage Loans) for which
it is the applicable Master Servicer, and (D) render such incidental services
with respect to any Specially Serviced Mortgage Loans and Administered REO
Properties for which it is the applicable Master Servicer as are specifically
provided for herein. In addition, each Master Servicer shall notify the
applicable Special Servicer within three Business Days following its receipt of
any collections on any Specially Serviced Mortgage Loan, such Special Servicer
shall within one Business Day thereafter notify such Master Servicer with
instructions on how to apply such collections and such Master Servicer shall
apply such collections in accordance with such instructions within one Business
Day following such Master Servicer's receipt of such notice.
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Certain provisions of this Article III make reference to their
applicability to Serviced Mortgage Loans. Notwithstanding such explicit
references, references to "Serviced Mortgage Loans" contained in this Article
III, unless otherwise specified, shall be construed to refer also to each
Serviced Mortgage Loan Group in its entirety (but any other term that is defined
in Article I and used in this Article III shall be construed according to such
definition without regard to this sentence).
(b) Subject to Section 3.01(a) and the other terms and provisions
of this Agreement, the Master Servicers and the Special Servicers shall each
have full power and authority, acting alone or, subject to Section 3.22, through
Primary Servicer and/or Sub-Servicers, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, each
Master Servicer (with respect to those Serviced Mortgage Loans that it is
obligated to service and administer pursuant to this Agreement) and each Special
Servicer (with respect to the Specially Serviced Mortgage Loans and Administered
REO Properties for which it is the applicable Special Servicer), in its own name
or in the name of the Trustee, is hereby authorized and empowered by the Trustee
and (in the case of each Serviced Mortgage Loan Group) the related Serviced
Non-Pooled Mortgage Loan Noteholders, to execute and deliver, on behalf of the
Certificateholders, the Trustee and (in the case of each Serviced Mortgage Loan
Group) each Serviced Non-Pooled 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 the Mortgage or other
security document in the related Mortgage File on the related Mortgaged Property
and other related collateral; (ii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, or of partial or full
defeasance, and all other comparable instruments; and (iii) subject to Sections
3.08, 3.20, 3.24, 3.27, 3.28, 3.29 and 3.30) any and all assumptions,
modifications, waivers, substitutions, extensions, amendments, consents to
transfers of interests in Borrowers, consents to any subordinate financings to
be secured by any related Mortgaged Property, consents to any mezzanine
financing to be secured by ownership interests in a Borrower, consents to and
monitoring of the application of any proceeds of insurance policies or
condemnation awards to the restoration of the related Mortgaged Property or
otherwise, documents relating to the management, operation, maintenance, repair,
leasing and marketing of the related Mortgaged Properties (including agreements
and requests by any Borrower with respect to modifications of the standards of
operation and management of the Mortgaged Properties or the replacement of asset
managers), documents exercising any or all of the rights, powers and privileges
granted or provided to the holder of any Serviced Mortgage Loan under the
related Mortgage Loan Documents, lease subordination agreements, non-disturbance
and attornment agreements or other leasing or rental arrangements that may be
requested by any Borrower or its tenants, documents granting, modifying or
releasing (or joining the Borrower therein) any easements, covenants,
conditions, restrictions, equitable servitudes, or land use or zoning
requirements with respect to the Mortgaged Properties, instruments relating to
the custody of any collateral that now secures or hereafter may secure any
Serviced Mortgage Loan and any other consents. Subject to Section 3.10, the
Trustee shall, at the written request of a Servicing Officer of either Master
Servicer or any Special Servicer, furnish, or cause to be so furnished, to such
Master Servicer or such Special Servicer, as the case may be, any limited powers
of attorney and other documents (each of which shall be prepared by such Master
Servicer or such Special Servicer, as the case may be) necessary or appropriate
to enable it to carry out its servicing and administrative duties hereunder;
provided that the Trustee shall not be held liable for any misuse of any such
power of attorney by either Master Servicer or Special Servicer. Without
limiting the generality of the foregoing, the Trustee shall execute and deliver
to each Master Servicer and the Special Servicer, on or before the Closing Date,
a power of attorney substantially in the form attached as Exhibit L hereto.
Notwithstanding anything contained herein to the contrary, neither a 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 such 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.
Each Master Servicer and the Special Servicer shall indemnify (out of its own
funds without reimbursement therefor) the Trustee for any and all costs,
liabilities and expenses incurred by the Trustee in connection with the
negligent or willful misuse of such power of attorney by such Master Servicer or
the Special Servicer, as the case may be.
(c) The applicable Master Servicer or the applicable Special
Servicer, as the case may be, in accordance with this Agreement, shall service
and administer each Cross-Collateralized Group as a single Mortgage Loan
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as and when necessary and appropriate consistent with the Servicing Standard and
applicable law and in accordance with this Agreement.
(d) The relationship of each Master Servicer and each Special
Servicer to the Trustee and, unless they are the same Person, one another
(whether between a Master Servicer and the other Master Servicer or a Special
Servicer and the other Special Servicer or a Master Servicer and a Special
Servicer) under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
(e) Notwithstanding any provision of this Agreement to the
contrary, each Serviced Mortgage Loan Group shall be serviced and administered
under this Agreement only for as long as the Pooled Mortgage Loan that is a part
of such Serviced Mortgage Loan Group or the beneficial interest in any related
REO Property constitutes an asset of the Trust Fund; provided, however, that,
notwithstanding the foregoing, the servicing and administration of a Serviced
Mortgage Loan Group pursuant to the terms hereof and the applicable Mortgage
Loan Group Intercreditor Agreement shall continue until a new servicing
agreement is entered into with respect to such Serviced Mortgage Loan Group as
provided in the related Mortgage Loan Group Intercreditor Agreement but such
servicing and administration shall be conducted as if such Serviced Mortgage
Loan Group or any related REO Property were the sole assets subject hereto
(including for purposes of reimbursement of Advances and payment of fees and
expenses), with 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 Pooled Mortgage Loan.
(f) Nothing contained in this Agreement shall limit the ability of
either Master Servicer to lend money to (to the extent not secured, in whole or
in part, by any Mortgaged Property), accept deposits from and otherwise
generally engage in any kind of business or dealings with any Borrower as though
such Master Servicer was not a party to this Agreement or to the transactions
contemplated hereby; provided, however, that this sentence shall not be
construed to modify the Servicing Standard.
(g) The parties hereto acknowledge that each Non-Trust-Serviced
Pooled Mortgage Loan is subject to the terms and conditions of the related
Mortgage Loan Group Intercreditor Agreement. The parties hereto recognize the
respective rights and obligations of the "Holders" and "Lenders" under the
Mortgage Loan Group Intercreditor Agreements for such Non-Trust-Serviced Pooled
Mortgage Loans, including with respect to the allocation of collections and
losses on or in respect of such Non-Trust-Serviced Pooled Mortgage Loans and the
related Non-Pooled Mortgage Loan(s) and the making of payments to the "Holders"
and "Lenders" in accordance with each such Mortgage Loan Group Intercreditor
Agreement and the related Non-Trust Servicing Agreement. The parties hereto
further acknowledge that, pursuant to the related Mortgage Loan Group
Intercreditor Agreement(s) for each Non-Trust-Serviced Pooled Mortgage Loan,
each Non-Trust-Serviced Pooled Mortgage Loan and the related Non-Pooled Mortgage
Loan(s) are to be serviced and administered by the related Non-Trust Master
Servicer and related Non-Trust Special Servicer in accordance with the related
Non-Trust Servicing Agreement. Although each Non-Trust-Serviced Pooled Mortgage
Loan is not a Serviced Mortgage Loan hereunder, the applicable Master Servicer
hereunder for such Non-Trust-Serviced Pooled Mortgage Loan shall have certain
duties and shall constitute the "applicable Master Servicer" hereunder with
respect to such Non-Trust-Serviced Pooled Mortgage Loan.
With respect to each Non-Trust-Serviced Pooled Mortgage Loan, the
parties to this Agreement shall have no obligation or authority to supervise
respective parties to the Non-Trust Servicing Agreement (but this statement
shall not relieve them of liabilities they may otherwise have in their
capacities as parties to the Non-Trust Servicing Agreement). If there are at any
time amounts due from the Trust, as holder of a Non-Trust-Serviced Pooled
Mortgage Loan, to any party under the related Mortgage Loan Group Intercreditor
Agreement or the related Non-Trust Servicing Agreement, the applicable Master
Servicer shall notify the General Special Servicer and the Controlling Class
Representative, and the applicable Master Servicer may pay such amounts out of
its Collection Account, and, if and to the extent that the deposits in such
Master Servicer's Collection Account are insufficient, may (or, at the direction
of the Controlling Class Representative, shall) pay such amounts from its own
funds (provided that any such payment from its
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own funds shall constitute, and be reimbursable as, a Servicing Advance). Except
as otherwise expressly addressed in Section 3.20, if a party to the Non-Trust
Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan
requests the Trustee to consent to a modification, waiver or amendment of, or
other loan-level action related to, such Non-Trust-Serviced Pooled Mortgage Loan
(and a modification, waiver or amendment of the related Non-Trust Servicing
Agreement and/or the related Mortgage Loan Group Intercreditor Agreement shall
not be subject to the operation of this sentence but shall instead be subject to
the operation of the second succeeding sentence), then the Trustee shall
promptly deliver a copy of such request to the Special Servicer and the Trustee
shall not grant such consent unless the Special Servicer directs the Trustee to
grant such consent; provided, however, that, if such Non-Trust-Serviced Pooled
Mortgage Loan were serviced hereunder and such action would not be permitted
without written confirmation from a Rating Agency to the effect that such action
would not, in and of itself, result in an Adverse Rating Event with respect to
any Class of Rated Certificates, then the Special Servicer shall not grant such
direction without first having obtained such written confirmation (payable at
the expense of the party requesting such approval of the Trustee, if allowed
under the related Mortgage Loan Group Intercreditor Agreement, and otherwise
from the related Master Servicer's Collection Account). If a Responsible Officer
of the Trustee receives actual notice of a default or event of default on the
part of any other party under the related Non-Trust Servicing Agreement, then
(subject to the next paragraph) the Trustee shall notify (in writing), and act
in accordance with the instructions of, the Controlling Class Representative;
provided that, if such instructions are not provided within a reasonable time
period (not to exceed ten (10) Business Days or such lesser response time as is
afforded under the related Mortgage Loan Documents or related Non-Trust
Servicing Agreement, as applicable) or if the Trustee is not permitted (pursuant
to the next paragraph) to follow such instructions, then the Trustee will take
such action or inaction, as directed in writing by the Holders of the
Certificates entitled to a majority of the Voting Rights within a reasonable
period of time that does not exceed such response time as is afforded under the
related Mortgage Loan Documents or related Non-Trust Servicing Agreement, as
applicable. If the Trustee receives a request from any party to a Non-Trust
Servicing Agreement for consent to or approval of a modification, waiver or
amendment of such Non-Trust Servicing Agreement and/or the related Mortgage Loan
Group Intercreditor Agreement, or the adoption of any servicing agreement that
is the successor to and/or in replacement of such Non-Trust Servicing Agreement
in effect as of the Closing Date or a change in servicer under such Non-Trust
Servicing Agreement, then the Trustee shall not grant such consent or approval
unless it receives the consent of the applicable Master Servicer under this
Agreement, the consent of the Controlling Class Representative and a written
confirmation (at the expense of the party requesting such approval of the
Trustee, if a Certificateholder or a party to this Agreement, otherwise from the
related Master Servicer's Collection Account) from each Rating Agency to the
effect that such consent or approval would not result in an Adverse Rating Event
with respect to any Class of Rated Certificates. During the continuation of any
event of default or other default under a Non-Trust Servicing Agreement, each of
the Trustee and the applicable Master Servicer shall have the right to take all
actions to enforce its rights and remedies and to protect the interests, and
enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filings of proofs of claim and debt in connection
therewith). The reasonable costs and expenses incurred by the Trustee in
connection with such enforcement shall, at the direction of the Trustee, be paid
by, and reimbursable to, the applicable Master Servicer as Servicing Advances
(subject to Section 3.11(h)). The Trustee and the applicable Master Servicer
shall each promptly forward all material notices or other communications
delivered to it in connection with each Non-Trust Servicing Agreement to the
other such party, the Depositor and the Controlling Class Representative and, if
such notice or communication is in the nature of a notice or communication that
would be required to be delivered to the Rating Agencies if the related
Non-Trust-Serviced Pooled Mortgage Loan were a Serviced Mortgage Loan, to the
Rating Agencies.
Notwithstanding anything herein to the contrary: (i) the Trustee
shall not have any right or obligation to consult with or to seek and/or obtain
consent or approval from any Controlling Class Representative prior to acting
during the period following any resignation or removal of a Controlling Class
Representative and before a replacement is selected; and (ii) no advice,
direction or objection from or by the Controlling Class Representative, as
contemplated by the prior paragraph, may (and the Trustee shall ignore and act
without regard to any such advice, direction or objection that the Trustee has
determined, in its reasonable, good faith judgment, would): (A) require or cause
the Trustee to violate applicable law, or any other Section of this Agreement,
(B) result in an Adverse REMIC Event with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to any Grantor Trust Pool, (C) expose
the Trust, the
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Depositor, a Master Servicer (or a Primary Servicer or Sub-Servicer acting on
behalf of a Master Servicer), the Special Servicer, the Certificate
Administrator, the Trustee or any of their respective Affiliates, members,
managers, officers, directors, employees or agents, to any material claim, suit
or liability or (D) expand the scope of a Trustee's responsibilities under this
Agreement.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The applicable Master Servicer and the applicable Special
Servicer shall make efforts consistent with the Servicing Standard and the terms
of this Agreement to collect all payments required under the terms and
provisions of the respective Serviced Mortgage Loans it is obligated to service
hereunder and shall follow such collection procedures as are consistent with the
Servicing Standard; provided that none of the Master Servicers or the Special
Servicers shall, with respect to any Mortgage Loan that constitutes an ARD
Mortgage Loan after its Anticipated Repayment Date, take any enforcement action
with respect to the payment of Post-ARD Additional Interest (other than the
making of requests for its collection), and a Special Servicer may do so only if
(i) the taking of an enforcement action with respect to the payment of other
amounts due under such Mortgage Loan is, in the reasonable judgment of such
Special Servicer, and without regard to such Post-ARD Additional Interest, also
necessary, appropriate and consistent with the Servicing Standard or (ii) all
other amounts due under such Mortgage Loan have been paid, the payment of such
Post-ARD Additional Interest has not been forgiven in accordance with Section
3.20 and, in the reasonable judgment of the Special Servicer, exercised in
accordance with the Servicing Standard, the Liquidation Proceeds expected to be
recovered in connection with such enforcement action will cover the anticipated
costs of such enforcement action and, if applicable, any associated Advance
Interest. Consistent with the foregoing, the applicable Master Servicer may
grant case-by-case waivers of Default Charges in connection with a late payment
on a Serviced Mortgage Loan, provided that, for any waiver thereof under any
Serviced Mortgage Loan where both (x) any Advance Interest is then outstanding
and (y) either (1) the waiver would be the fourth (or more) such waiver for such
Mortgage Loan or (2) such Mortgage Loan is 60 days or more delinquent in respect
of any Monthly Payment, the applicable Master Servicer shall have obtained the
consent of the applicable Special Servicer, which shall have obtained the
consent of the Controlling Class Representative and/or the related Serviced
Mortgage Loan Group Controlling Party, as and to the extent contemplated by
Sections 3.08, 3.20, 3.24, 3.27, 3.28, 3.29 and 3.30, as applicable.
(b) At least 90 days prior to the maturity date of each Balloon
Mortgage Loan, the applicable Master Servicer shall send a notice to the related
Borrower of such maturity date (with a copy to be sent to the applicable Special
Servicer) and shall request confirmation that the Balloon Payment will be paid
by such maturity date.
(c) With respect to each Non-Trust-Serviced Pooled Mortgage Loan
(if any):
(i) promptly following the Closing Date, the Trustee shall
send written notice in the form of Exhibit P attached hereto, accompanied
by an executed version of this Agreement, to the trustee under the
applicable pooling and servicing agreement and the related Non-Trust
Master Servicer stating that, as of the Closing Date, the Trustee is the
holder of such Non-Trust-Serviced Pooled Mortgage Loan and directing each
such recipient to remit to the applicable Master Servicer all amounts
payable to, and to forward, deliver or otherwise make available, as the
case may be, to the applicable Master Servicer all reports, statements,
documents, communications and other information that are to be forwarded,
delivered or otherwise made available to, the holder of such
Non-Trust-Serviced Pooled Mortgage Loan under the related Mortgage Loan
Group Intercreditor Agreement and such pooling and servicing agreement; in
addition, such notice shall provide contact information for the Trustee,
the applicable Master Servicer, the Special Servicer and the Controlling
Class Representative.
(ii) with respect to such Non-Trust-Serviced Pooled
Mortgage Loan, the related Mortgaged Property or any related REO Property,
the applicable Master Servicer shall, on the day of receipt thereof, if
such Master Servicer is the same Person or an Affiliate of the related
Non-Trust Master Servicer, and otherwise within
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one Business Day following the receipt thereof, deposit into its
Collection Account all amounts received by it from the Non-Trust Master
Servicer or any other party under the related Non-Trust Servicing
Agreement;
(iii) if, as of the close of business on the Determination
Date on which a Collection Period ends in any calendar month, the
applicable Master Servicer has not received a Monthly Payment due on such
Non-Trust-Serviced Pooled Mortgage Loan during such Collection Period for
any reason (whether because such Due Date has not yet occurred, the grace
period for such Monthly Payment has not yet expired, the related Borrower
has failed to make such Monthly Payment, the remittance date for such
Monthly Payment has not yet occurred under the terms of the Non-Trust
Servicing Agreement or the related Non-Trust Master Servicer has failed to
timely make a remittance of such Monthly Payment that it is required to
have made), then (A) for the avoidance of doubt, the applicable Master
Servicer shall make a P&I Advance with respect to such amount on the
Master Servicer Remittance Date immediately succeeding such Collection
Period, subject to and in accordance with Section 4.03 (and, in accordance
with such Section 4.03, if the applicable Master Servicer fails to make
such P&I Advance, then the Trustee shall make such P&I Advance); and (B)
notwithstanding any contrary provision of Section 4.03, Advance Interest
shall not commence accruing on such P&I Advance until the date that is the
earlier of (i) one calendar day after the later of the Due Date for such
Monthly Payment or the expiration of the grace period, if any, applicable
to such Due Date, but only if the Borrower failed to make its Monthly
Payment on such date, or (ii) otherwise, the date that is one calendar day
after the date on which the related Non-Trust Master Servicer is required
to remit such Monthly Payment to the applicable Master Servicer pursuant
to the terms of the applicable Non-Trust Servicing Agreement and/or
applicable Mortgage Loan Group Intercreditor Agreement;
(iv) if the applicable Master Servicer has notice, or a
Servicing Officer of the Master Servicer has knowledge, of a material
failure of a Non-Trust Master Servicer to make a remittance that it is
required to make to such applicable Master Servicer under the terms of the
related Non-Trust Servicing Agreement and/or the related Mortgage Loan
Group Intercreditor Agreement, or if the applicable Master Servicer has
notice, or a Servicing Officer of the Master Servicer has knowledge, of a
material default or event of default under such Non-Trust Servicing
Agreement and/or Mortgage Loan Group Intercreditor Agreement, then such
applicable Master Servicer shall provide notice of such failure or such
default to such Non-Trust Master Servicer, the trustee under the related
Non-Trust Servicing Agreement, the Trustee and the Controlling Class
Representative;
(v) in the case of each of the DRA/Colonial Office
Portfolio Pooled Mortgage Loan (as to which the Balloon Payment is due on
July 1, 2014, and the related Non-Trust Master Servicer is required by the
applicable Non-Trust Servicing Agreement to remit such Balloon Payment (if
timely received by it on July 1, 2014) to the applicable Master Servicer
on July 2, 2014 pursuant to the terms of the related Non-Trust Servicing
Agreement) and the RRI Hotel Portfolio Pooled Mortgage Loan (as to which
the Balloon Payment is due on September 1, 2017 and the related Non-Trust
Master Servicer is required by the applicable Non-Trust Servicing
Agreement to remit such Balloon Payment (if timely received by it on
September 1, 2017) to the applicable Master Servicer on September 5, 2017
pursuant to the terms of the related Non-Trust Servicing Agreement), (A)
the applicable Master Servicer shall provide notice to the Certificate
Administrator and the Servicer Report Administrator no later than 2:00
p.m. (New York City time) two (2) Business Days prior to the related
Distribution Date reflecting the pendency of the payment of such Balloon
Payment (unless an event of default has occurred under such
Non-Trust-Serviced Pooled Mortgage Loan); (B) if the applicable Master
Servicer provides the notice described in clause (A) above and it receives
such remittance on or before such day, it shall remit such Balloon Payment
to the Certificate Administrator (for deposit into the Distribution
Account) on the Master Servicer Remittance Date in July 2014 or September
2017, as the case may be, and shall not make a P&I Advance in respect of
such Balloon Payment and the Principal Distribution Amount that would
otherwise have been in effect for the Distribution Date in July 2014 or
September 2017, as the case may be, shall be increased by the amount of
the principal portion of such Balloon Payment (and, for the avoidance of
doubt, such Balloon Payment will not be deemed to have been received
during the Collection Period related to the next succeeding Distribution
Date); and (C) if the applicable Master Servicer fails to make such
remittance following such receipt or the applicable Master Servicer does
not provide the notice described in clause (A) above, (x) for the
avoidance of
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doubt, such Master Servicer shall make a P&I Advance (subject to and in
accordance with Section 4.03) in an amount equal to the Assumed Monthly
Payment, (y) such failure shall constitute an Event of Default but the
applicable Master Servicer shall be entitled to cure such Event of Default
(and may not be terminated under Article VII unless it does not effect
such cure) by making, not later than the Master Servicer Remittance Date
occurring in the month following such July 2014 or September 2017, as the
case may be, a payment of cash, from its own funds without right of
reimbursement therefor, to the Certificate Administrator (for deposit in
the Distribution Account) in an amount equal to one month's interest at
the Net Mortgage Rate of the applicable Pooled Mortgage Loan on a
principal amount equal to the principal portion of such Balloon Payment
and (z) for purposes of the definition of "Principal Distribution Amount"
for the Distribution Date occurring in such month following such July 2014
or September 2017, as the case may be, the principal portion of such
Balloon Payment shall be construed to have been collected during the
Collection Period related to the Distribution Date occurring in such month
following such July 2014 or September 2017, as the case may be; and
(vi) at any time when such Non-Trust-Serviced Pooled
Mortgage Loan is not a defaulted Mortgage Loan or a Specially Serviced
Mortgage Loan, to the extent that a voluntary Principal Prepayment is made
to the applicable Non-Trust Master Servicer on or before the Due Date
occurring in any month in accordance with the related Mortgage Loan
Documents in effect on the Closing Date, is timely remitted by such
Non-Trust Master Servicer and such remittance is made after the end of the
Collection Period ending in such month, such payment (and any accompanying
Prepayment Premium or Yield Maintenance Charge that is Received by the
Trust) will nevertheless be distributed to Certificateholders on the
Distribution Date occurring in such month if the applicable Master
Servicer (a) provides notice to the Certificate Administrator and the
Servicer Report Administrator no later than 2:00 p.m. (New York City time)
two (2) Business Days prior to the related Distribution Date reflecting
the related Borrower's intention to make such payment, and (b) either (i)
remits such payment to the Certificate Administrator on the related Master
Servicer Remittance Date, or (ii) provides notice to the Certificate
Administrator no later than 5:30 p.m. (New York City time) on the related
Master Servicer Remittance Date that such payment has been received by the
applicable Master Servicer and then remits such payment to the Certificate
Administrator by 10:00 a.m. (New York City time) on the related
Distribution Date with interest for the account of the Certificate
Administrator on such remittance at the Reimbursement Rate from and
including such Master Servicer Remittance Date to but excluding the
related Distribution Date. If the timing and notice requirements set forth
in (a) and (b) above are not satisfied with respect to such voluntary
Principal Prepayment, then (A) such circumstances shall constitute an
Event of Default of the applicable Master Servicer but the applicable
Master Servicer shall be entitled to cure such Event of Default (and may
not be terminated under Article VII unless it does not effect such cure)
by making, not later than the Master Servicer Remittance Date occurring in
the month immediately following the month in which the Principal
Prepayment occurred, a payment of cash, from its own funds without right
of reimbursement therefor, to the Certificate Administrator (for deposit
in the Distribution Account) in an amount equal to one month's interest at
the Net Mortgage Rate of such Non-Trust-Serviced Pooled Mortgage Loan on a
principal amount equal to such Principal Prepayment; and (B) such
Principal Prepayment (and such accompanying Prepayment Premium or Yield
Maintenance Charge) will be deemed to have been received in the next
succeeding Collection Period. For the avoidance of doubt, the applicable
Master Servicer will not be required to make (and the applicable Master
Servicer will not be in default hereunder for not making) any payment
described in the preceding sentence in connection with a voluntary
Principal Prepayment that is not timely remitted to the Master Servicer by
the related Non-Trust Master Servicer in accordance with the related
Non-Trust Servicing Agreement and Mortgage Loan Group Intercreditor
Agreement. In addition, any cure payment made by the applicable Master
Servicer as described in the second preceding sentence in connection with
any applicable Principal Prepayment that is made on a date other than a
Due Date shall not include (and the applicable Master Servicer shall not
be in default hereunder if such payment does not include) the interest
that would have accrued from the date of the Principal Prepayment to the
next succeeding Due Date (but, for the avoidance of doubt, any payment
covering such interest that is made by the related Borrower and received
by the applicable Master Servicer from the Non-Trust Master Servicer shall
be included in the Master Servicer Remittance Amount for the applicable
Collection Period in which the Principal Prepayment is received or deemed
received as described above).
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(d) With respect to each Pooled Mortgage Loan for which the Due
Date is scheduled to occur after the seventh day of each month (subject to any
applicable business day convention), to the extent that a voluntary Principal
Prepayment is received by the applicable Master Servicer after the end of the
Collection Period ending in such month (and such Pooled Mortgage Loan is not a
Specially Serviced Mortgage Loan or a defaulted Mortgage Loan), such Principal
Payment and any accompanying interest (and any accompanying Prepayment Premium
or Yield Maintenance Charge that is Received by the Trust) (and the interest
referred to above shall be net of any portion thereof that is similar to a
Prepayment Interest Excess representing interest accrued from and after the Due
Date in such month, which portion shall be retained by the applicable Master
Servicer as Additional Master Servicer Compensation) will nevertheless be
distributed to Certificateholders on the Distribution Date occurring in such
month if the applicable Master Servicer (a) provides notice to the Certificate
Administrator and the Servicer Report Administrator no later than 2:00 p.m. (New
York City time) two (2) Business Days prior to the related Distribution Date
reflecting the related Borrower's intention to make such payment, and (b) both
(i) remits such payment (together with, solely in the case of a Principal
Prepayment made before a Due Date, a payment from such Master Servicer's own
funds in an amount equal to the interest that would have accrued (at the related
Net Mortgage Rate) on the Principal Prepayment from and including the date of
the Principal Prepayment to but excluding such Due Date) to the Certificate
Administrator not later than 1:00 p.m. (New York City time) on the related
Master Servicer Remittance Date and (ii) provides to the Certificate
Administrator a revised CMSA Loan Periodic Update File not later than 9:00 a.m.
(New York City time) on the related Master Servicer Remittance Date. If the
timing and notice requirements set forth in (a) and (b) above are satisfied with
respect to such voluntary Principal Prepayment, such payment shall be included
as part of the Master Servicer Remittance Amount for the applicable Master
Servicer for the related Distribution Date and the Principal Distribution Amount
that would otherwise have been in effect for the related Distribution Date shall
be increased by the amount of such Principal Prepayment. If the timing and
notice requirements set forth in (a) and (b) above are not satisfied with
respect to such voluntary Principal Prepayment, then (A) such circumstances
shall constitute an Event of Default of the applicable Master Servicer but the
applicable Master Servicer shall be entitled to cure such Event of Default (and
may not be terminated under Article VII unless it does not effect such cure) by
making, not later than the Master Servicer Remittance Date occurring in the
month immediately following the month in which the Principal Prepayment
occurred, a payment of cash, from its own funds without right of reimbursement
therefor, to the Certificate Administrator (for deposit in the Distribution
Account) in an amount equal to the sum of one month's interest at the Net
Mortgage Rate of the related Pooled Mortgage Loan on a principal amount equal to
such Principal Prepayment and, solely in the case of a Principal Prepayment made
before a Due Date, the interest that would have accrued (at the related Net
Mortgage Rate) on the Principal Prepayment from and including the date of the
Principal Prepayment to but excluding such Due Date; and (B) such Principal
Prepayment (and such accompanying Prepayment Premium or Yield Maintenance
Charge), and any accompanying interest will be deemed to have been received
during the Collection Period related to the Distribution Date occurring in the
month immediately following the month in which such Principal Prepayment was
made. Notwithstanding any contrary provision of the foregoing, the applicable
Master Servicer shall not be required to make (and shall not be in default
hereunder for not making) a payment of one month's interest otherwise described
in the preceding sentence to the extent that such interest otherwise constitutes
all or a portion of any Compensating Interest Payment that the applicable Master
Servicer otherwise makes in respect of the related Pooled Mortgage Loan. In the
case of each Pooled Mortgage Loan for which the Stated Maturity Date is
scheduled to occur after the seventh day of a month, if the related Balloon
Payment due on such Stated Maturity Date is timely received but such date
happens to fall later than the end of the Collection Period ending in the same
month, then the applicable Master Servicer shall (a) provide notice to the
Certificate Administrator and the Servicer Report Administrator no later than
2:00 p.m. (New York City time) two (2) Business Days prior to the related
Distribution Date reflecting the related Borrower's intention to make such
payment, and (b) both (i) remit such payment to the Certificate Administrator
not later than 1:00 p.m. (New York City time) on the related Master Servicer
Remittance Date and (ii) provide to the Certificate Administrator a revised CMSA
Loan Periodic Update File not later than 9:00 a.m. (New York City time) on the
related Master Servicer Remittance Date, in which case such Balloon Payment
shall be considered to have been received during the Collection Period related
to the Distribution Date occurring in such month for purposes of the remittance
of the Master Servicer Remittance Amount for the applicable Master Servicer for
such Distribution Date and the distribution of the Available Distribution Amount
and the Principal Distribution Amount for such Distribution Date. For the
avoidance of doubt, if such Balloon Payment is not timely received on or before
such Stated Maturity Date, then the applicable Master Servicer shall make the
applicable P&I Advance on the Master Servicer Remittance Date
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immediately succeeding such Collection Period, subject to and in accordance with
Section 4.03(b) (and, in accordance with such Section 4.03(b), if the applicable
Master Servicer fails to make such P&I Advance, then the Trustee shall make such
P&I Advance).
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) Each Master Servicer shall establish and maintain one or more
segregated accounts ("Servicing Accounts"), in which all Escrow Payments
received by it with respect to the Serviced Mortgage Loans for which it is the
applicable Master Servicer, shall be deposited and retained, separate and apart
from its own funds. Subject to any terms of the related Mortgage Loan Documents
that specify the nature of the account in which Escrow Payments shall be held,
each Servicing Account shall be an Eligible Account. As and to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, each Master Servicer may make withdrawals from the Servicing
Accounts maintained by it, and may apply Escrow Payments held therein with
respect to any Serviced Mortgage Loan (together with interest earned thereon),
only as follows: (i) to effect the payment of real estate taxes, assessments,
insurance premiums (including, premiums on any Environmental Insurance Policy),
ground rents (if applicable) and comparable items in respect of the related
Mortgaged Property; (ii) to reimburse such Master Servicer, the applicable
Special Servicer or the Trustee, as applicable, for any unreimbursed Servicing
Advances made thereby with respect to such Mortgage Loan to cover any of the
items described in the immediately preceding clause (i); (iii) to refund to the
related Borrower any sums as may be determined to be overages; (iv) to pay
interest or other income, if required and as described below, to the related
Borrower on balances in the Servicing Account (or, if and to the extent not
payable to the related Borrower to pay such interest or other income (up to the
amount of any Net Investment Earnings in respect of such Servicing Account for
each Collection Period) to such Master Servicer); (v) disburse Insurance
Proceeds if required to be applied to the repair or restoration of the related
Mortgaged Property, (vi) after an event of default, to pay the principal of,
accrued interest on and any other amounts payable with respect to such Mortgage
Loan; (vii) to withdraw amounts deposited in the Servicing Account in error; or
(viii) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. Each Master Servicer shall pay or
cause to be paid to the related Borrowers interest and other income, if any,
earned on the investment of funds in Servicing Accounts maintained thereby, if
and to the extent required by law or the terms of the related Mortgage Loan
Documents. If a Master Servicer shall deposit in a Servicing Account maintained
by it any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding. Promptly after any Escrow Payments are received by the
applicable Special Servicer from the Borrower under any Serviced Mortgage Loan,
and in any event within one Business Day after any such receipt, the applicable
Special Servicer shall remit such Escrow Payments to the applicable Master
Servicer for deposit in the applicable Servicing Account(s).
(b) The applicable Master Servicer shall as to each Serviced
Mortgage Loan (including each Specially Serviced Mortgage Loan): (i) maintain
accurate records with respect to the related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of insurance premiums and any ground rents
payable in respect thereof and (ii) use reasonable efforts consistent with the
Servicing Standard to obtain, from time to time, all bills for the payment of
such items (including renewal premiums) and effect payment thereof prior to the
applicable penalty or termination date. For purposes of effecting any such
payment with respect to any Serviced Mortgage Loan, the applicable Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan Documents; provided that if such Mortgage Loan does not require
the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
the applicable Master Servicer (or, if such Mortgage Loan becomes a Specially
Serviced Mortgage Loan, the applicable Special Servicer) shall, subject to and
in accordance with the Servicing Standard, use reasonable efforts to enforce the
requirement of the related Mortgage Loan Documents that the related Borrower
make payments in respect of such items at the time they first become due.
(c) In accordance with the Servicing Standard, but subject to
Section 3.11(h), the applicable Master Servicer, with respect to each Serviced
Mortgage Loan for which it is the Master Servicer (including each such Mortgage
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Loan that is a Specially Serviced Mortgage Loan) shall 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 timely payment of (i)
real estate taxes, assessments and other similar items, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies (including, premiums on
any Environmental Insurance Policy), in each instance prior to the applicable
penalty or termination date, in each instance if and to the extent that (x)
Escrow Payments (if any) collected from the related Borrower are insufficient to
pay such item when due, and (y) the related Borrower has failed to pay such item
on a timely basis; provided that, in the case of amounts described in the
preceding clause (i), the applicable Master Servicer shall not make a Servicing
Advance of any such amount if such Master Servicer reasonably anticipates (in
accordance with the Servicing Standard) that such amounts will be paid by the
related Borrower on or before the applicable penalty date, in which case such
Master Servicer shall use its best reasonable efforts consistent with the
Servicing Standard to confirm whether such amounts have been paid and, subject
to Section 3.11(h), shall make a Servicing Advance of such amounts, if
necessary, not later than five Business Days following confirmation by such
Master Servicer that such amounts have not been paid by the applicable penalty
date. All such Advances shall be reimbursable in the first instance from related
collections from the Borrowers and further as provided in Section 3.05(a). No
costs incurred by a Master Servicer in effecting the payment of real estate
taxes, assessments and, if applicable, ground rents on or in respect of any
Mortgaged Property shall, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the respective unpaid principal
balances or Stated Principal Balances of the subject Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit; provided that
this sentence shall not be construed to limit the rights of the applicable
Master Servicer or Special Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan.
(d) Each Master Servicer shall establish and maintain one or more
segregated accounts ("Reserve Accounts"), in which all Reserve Funds, if any,
received by it with respect to the Serviced Mortgage Loans as to which it is the
applicable Master Servicer, shall be deposited and retained, separate and apart
from its own funds. Subject to any terms of the related Mortgage Loan Documents
that specify the nature of the account in which Reserve Funds shall be held,
each Reserve Account shall be an Eligible Account. As and to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, each Master Servicer may make withdrawals from the Reserve
Accounts maintained by it, and may apply Reserve Funds held therein with respect
to any Serviced Mortgage Loan (together with interest earned thereon), only as
follows: (i) in the case of Reserve Funds that are intended to cover specific
costs and expenses, to pay for, or to reimburse the related Borrower in
connection with, the costs associated with the related tenant improvements,
leasing commissions, repairs, replacements, capital improvements and/or
environmental testing and remediation, litigation and/or other special expenses
at or with respect to the related Mortgaged Property for which such Reserve
Funds were intended and to refund the related Borrower any sums as may be
determined to be overages; (ii) in the case of Reserve Funds intended to cover
debt service payments, to apply amounts on deposit therein in respect of
principal and interest on such Mortgage Loan; (iii) to reimburse such Master
Servicer, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Advances made thereby with respect to such Mortgage Loan to cover
any of the items described in the immediately preceding clauses (i) and (ii)
(or, if any such Advance has become an Unliquidated Advance, to transfer to the
related Collection Account an amount equal to the reimbursement that would
otherwise have been made as described in this clause (iii)); (iv) subject to
Section 3.20, to release such Reserve Funds to the related Borrower if the
conditions precedent for such release are satisfied or otherwise apply such
Reserve Funds in accordance with the related Mortgage Loan Documents if the
conditions precedent for such release are not satisfied; (v) to pay interest or
other income, if required and as described below, to the related Borrower on
balances in the Reserve Account (or, if and to the extent not payable to the
related Borrower, to pay such interest or other income (up to the amount of any
Net Investment Earnings in respect of such Reserve Account for each Collection
Period) to such Master Servicer); (vi) to withdraw amounts deposited in such
Reserve Account in error; (vii) after an event of default, to pay the principal
of, accrued interest on, and any other amounts payable with respect to such
Mortgage Loan; or (viii) to clear and terminate the Reserve Account at the
termination of this Agreement in accordance with Section 9.01. If the Borrower
under any Serviced Mortgage Loan delivers a Letter of Credit in lieu of Reserve
Funds, then the applicable Master Servicer, subject to Section 3.20, shall make
draws on or reduce the amount of such Letter of Credit at such times and for
such purposes as it would have made withdrawals from or reductions of the amount
of a Reserve Account and, to the extent consistent with the Servicing Standard,
applicable law and the related Mortgage Loan Documents, in order to
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convert the amount of such Letter of Credit into Reserve Funds. Promptly after
any Reserve Funds are received by a Special Servicer from any Borrower, and in
any event within one Business Day of such receipt, such Special Servicer shall
remit such Reserve Funds to the applicable Master Servicer for deposit in the
applicable Reserve Account(s). Any out-of-pocket expenses, including reasonable
attorneys' fees and expenses, incurred by a Master Servicer or a Special
Servicer to enable such Master Servicer or such Special Servicer, as the case
may be, to make any draw under any Letter of Credit shall constitute a Servicing
Advance, and such Master Servicer or such Special Servicer, as the case may be,
shall make reasonable efforts to recover such expenses from the related Borrower
to the extent the Borrower is required to pay such expenses under the terms of
the related Mortgage Loan.
(e) To the extent an operations and maintenance plan is required
to be established and executed pursuant to the terms of the Mortgage Loans
Documents for a Serviced Mortgage Loan, the applicable Master Servicer shall
request from the related Borrower written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any other
action or remediation with respect to environmental matters is required to have
been taken or completed pursuant to the terms of a Serviced Mortgage Loan, the
applicable Master Servicer shall request from the related Borrower written
confirmation of such action and remediation within a reasonable time after the
later of the Closing Date and the date as of which such action or remediation
are required to have been taken or completed. To the extent that a Borrower
shall fail to promptly respond to any inquiry described in this Section 3.03(e),
the applicable Master Servicer shall notify the Trustee, the applicable Special
Servicer, the Controlling Class Representative and (if affected) the related
Serviced Non-Pooled Mortgage Loan Noteholder(s). The applicable Master Servicer
shall promptly notify the Trustee, the applicable Special Servicer, the
Controlling Class Representative and any affected Serviced Non-Pooled Mortgage
Loan Noteholders if such Master Servicer determines that the Borrower under any
Serviced Mortgage Loan has failed to perform its obligations under such Serviced
Mortgage Loan in respect of environmental matters.
(f) Subject to applicable law and the terms of the related
Mortgage Loan Documents, funds in the Servicing Accounts and the Reserve
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06.
(g) With respect to each Serviced Mortgage Loan that requires the
related Borrower to establish and maintain one or more lock-box, cash management
or similar accounts, the applicable Master Servicer shall establish and
maintain, in accordance with the Servicing Standard, such account(s) in
accordance with the terms of the related Mortgage Loan Documents. No such
lock-box account is required to be an Eligible Account, unless the Mortgage Loan
Documents otherwise so require. The applicable Master Servicer shall apply the
funds deposited in such accounts in accordance with terms of the related
Mortgage Loan Documents, any lock-box, cash management or similar agreement and
the Servicing Standard.
SECTION 3.04. Collection Accounts, Distribution Account, Interest
Reserve Account, Excess Liquidation Proceeds Account,
Companion Note Custodial Accounts and Subordinate Note
Custodial Accounts.
(a) Each of the Master Servicers shall segregate and hold all
funds collected and received by it in connection with the Pooled Mortgage Loans
for which it is the applicable Master Servicer separate and apart from its own
funds and general assets. In connection therewith, each Master Servicer shall
establish and maintain one or more segregated accounts (collectively, a
"Collection Account"), in which the funds described below are to be deposited
and held on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes a Collection Account shall be
an Eligible Account. Each Master Servicer shall deposit or cause to be deposited
in its Collection Account, within one Business Day of receipt by it (in the case
of payments by Borrowers or other collections on the Serviced Pooled Mortgage
Loans as to which it acts as Master Servicer) or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of such Master Servicer subsequent to the Closing Date with respect to
the Pooled Mortgage Loans as to which it is the applicable Master Servicer and
any Administered REO Properties acquired in respect thereof (other than in
respect of scheduled payments of principal and interest due and
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payable on such Pooled Mortgage Loans on or before their respective Cut-off
Dates (or, in the case of a Replacement Pooled Mortgage Loan, on or before the
related date of substitution), which payments shall be delivered promptly to the
related Pooled Mortgage Loan Seller or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse):
(i) all payments (from whatever source) on account of
principal of such Serviced Pooled Mortgage Loans, including Principal
Prepayments;
(ii) all payments (from whatever source) on account of
interest on such Serviced Pooled Mortgage Loans, including Default
Interest, Post-ARD Additional Interest and 0000-0000 Xxxxxx Xxxxxx
Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges
and/or late payment charges received with respect to such Serviced Pooled
Mortgage Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received with respect to such Serviced Pooled
Mortgage Loans and/or, insofar as such payments and/or proceeds represent
amounts allocable to reimburse Servicing Advances or pay Liquidation
Expenses and/or other servicing expenses in respect of the entire Mortgage
Loan Group of which any such Serviced Pooled Mortgage Loan is part;
(v) any amounts relating to such Serviced Pooled Mortgage
Loans and/or Administered REO Properties required to be deposited by such
Master Servicer or such Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a blanket or
master force placed hazard insurance policy;
(vi) any amounts relating to an Administered REO Properties
required to be transferred from any REO Account pursuant to Section
3.16(c);
(vii) to the extent not otherwise included in another clause
of this Section 3.04(a), any payments collected in respect of Unliquidated
Advances on such Pooled Mortgage Loans or in respect of amounts previously
determined to constitute Nonrecoverable Advances;
(viii) insofar as they do not constitute Escrow Payments or
Reserve Funds, any amounts relating to such Serviced Pooled Mortgage Loans
paid by a Borrower specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses from a Borrower; and
(ix) in connection with the initial Collection Period, the
Closing Date Deposit Amount paid by the related Pooled Mortgage Loan
Seller for each Closing Date Deposit Mortgage Loan for which such Master
Servicer is the applicable Master Servicer (and, by its execution of this
Agreement, the applicable Master Servicer for each Closing Date Deposit
Mortgage Loan hereby acknowledges that it has so received and deposited
the Closing Date Deposit Amount for such Closing Date Deposit Mortgage
Loan).
In addition, the applicable Master Servicer shall deposit into its
Collection Account, promptly upon receipt thereof if such Master Servicer is
also the related Non-Trust Master Servicer and otherwise within one Business Day
following receipt thereof, all remittances to the Trust under the Non-Trust
Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan or any
Non-Trust-Serviced REO Property. Furthermore, the applicable Master Servicer for
any Serviced Mortgage Loan Group shall deposit into its Collection Account,
within one Business Day following receipt thereof, all payments to the Trust
made by the Serviced Non-Pooled Mortgage Loan Noteholders in respect of
Nonrecoverable Advances or expenses pursuant to the terms of the related
Mortgage Loan Group Intercreditor Agreement.
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Furthermore, each Master Servicer shall deposit in its Collection
Account any amounts required to be deposited by such Master Servicer pursuant to
Section 3.06, as and when required by such section, in connection with losses
incurred with respect to Permitted Investments of funds held in such Collection
Account.
Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into its Collection Account any amount that such
Master Servicer would be authorized to withdraw immediately from such Collection
Account in accordance with the terms of Section 3.05 and shall be entitled to
instead pay such amount directly to the Person(s) entitled thereto.
The foregoing requirements for deposit in a Collection Account shall
be exclusive. Without limiting the generality of the foregoing, actual payments
from Borrowers in the nature of Escrow Payments, assumption fees, assumption
application fees, earn-out fees, extension fees, modification fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and other fees and amounts collected from Borrowers that
constitute Additional Master Servicing Compensation and/or Additional Special
Servicing Compensation, need not be deposited by either Master Servicer in its
Collection Account. Each Master Servicer shall promptly, and in any event within
one Business Day, deliver to the applicable Special Servicer any of the
foregoing items received by it with respect to any Pooled Mortgage Loan, if and
to the extent that such items constitute Additional Special Servicing
Compensation payable to the applicable Special Servicer. If either Master
Servicer shall deposit in its Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Collection
Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (vii) through (viii) of the first paragraph of this Section 3.04(a)
with respect to any Serviced Pooled Mortgage Loan, the applicable Special
Servicer shall promptly, but in no event later than one Business Day after
receipt, remit such amounts to the applicable Master Servicer for deposit into
such Master Servicer's Collection Account, unless the applicable Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement. With respect
to any such amounts paid by check to the order of the applicable Special
Servicer, each Special Servicer shall endorse such check to the order of the
applicable Master Servicer (in its capacity as such), without recourse,
representation or warranty, unless each Special Servicer determines, consistent
with the Servicing Standard, that a particular item cannot be so endorsed and
delivered because of a restrictive endorsement. Any such amounts received by the
applicable Special Servicer with respect to an Administered REO Property shall
be deposited by such Special Servicer into the related REO Account and remitted
to the applicable Master Servicer for deposit into such Master Servicer's
Collection Account pursuant to Section 3.16(c).
(b) The Certificate Administrator shall establish and maintain one
or more segregated accounts (collectively, the "Distribution Account"), to be
held on behalf and in the name of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Distribution Account shall
be an Eligible Account. The Certificate Administrator shall, as a bookkeeping
matter, establish and maintain two sub-accounts of the Distribution Account (i)
one of which sub-accounts (such sub-account, the "REMIC Sub-Account") shall be
deemed to be held in trust for the benefit of the Holders of the REMIC III
Regular Interests and the Class R Certificates, and (ii) one of which
sub-accounts (such sub-account, the "Class V Sub-Account") shall be deemed to be
held in trust for the benefit of the Holders of the Class V Certificates. Not
later than 1:00 p.m. (New York City time) on each Master Servicer Remittance
Date, each Master Servicer shall deliver to the Certificate Administrator, for
deposit in the Distribution Account, an aggregate amount of immediately
available funds equal to the Master Servicer Remittance Amount with respect to
such Master Servicer for such Master Servicer Remittance Date. Immediately upon
deposit of a Master Servicer Remittance Amount into the Distribution Account,
any portion thereof that represents any Post-ARD Additional Interest related to
the ARD Mortgage Loans and/or any successor REO Mortgage Loans with respect
thereto included in the Mortgage Pool shall be deemed to have been deposited
into the Class V Sub-Account, and the remaining portion thereof shall be deemed
to have been deposited into the REMIC Sub-Account. In addition, each Master
Servicer shall, as and when required hereunder, deliver to the Certificate
Administrator for deposit in the Distribution Account any P&I Advances and
Compensating Interest Payments required to be made by such Master Servicer
hereunder. Furthermore, any amounts paid by any party hereto to
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indemnify the Trust Fund pursuant to any provision hereof shall be delivered to
the Certificate Administrator for deposit in the Distribution Account. The
Certificate Administrator shall, upon receipt, deposit in the Distribution
Account any and all amounts received or, pursuant to Section 4.03, advanced by
the Trustee that are required by the terms of this Agreement to be deposited
therein. As and when required pursuant to Section 3.05(c), the Certificate
Administrator shall transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans from the Interest Reserve Account to the Distribution Account.
Furthermore, as and when required pursuant to Section 3.05(d), the Certificate
Administrator shall transfer monies from the Excess Liquidation Proceeds Account
to the Distribution Account. The Certificate Administrator shall also deposit in
the Distribution Account any amounts required to be deposited by the Certificate
Administrator pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Distribution Account. If
the Certificate Administrator shall deposit in the Distribution Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding.
(c) The Certificate Administrator shall establish and maintain one
or more accounts (collectively, the "Interest Reserve Account") to be held on
behalf and in the name of the Trustee in trust for the benefit of the
Certificateholders; provided that, subject to the next paragraph, the Interest
Reserve Account may be a sub-account of the Distribution Account. Each account
that constitutes the Interest Reserve Account shall be an Eligible Account. On
the Distribution Date in January (except during a leap year) and February of
each calendar year, commencing in 2008, prior to any distributions being made
with respect to the Certificates on such Distribution Date, the Certificate
Administrator shall, with respect to each Interest Reserve Loan, withdraw from
the Distribution Account and deposit in the Interest Reserve Account an amount
equal to the Interest Reserve Amount, if any, in respect of such Interest
Reserve Loan for such Distribution Date; provided that no such transfer of
monies from the Distribution Account to the Interest Reserve Account shall be
made on the Final Distribution Date. The Certificate Administrator shall also
deposit in the Interest Reserve Account from its own funds any amounts required
to be deposited by the Certificate Administrator pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of funds
held in the Interest Reserve Account.
Notwithstanding that the Interest Reserve Account may be a
sub-account of the Distribution Account for reasons of administrative
convenience, the Interest Reserve Account and the Distribution Account shall,
for all purposes of this Agreement (including the obligations and
responsibilities of the Certificate Administrator hereunder), be considered to
be and shall be required to be treated as, separate and distinct accounts.
(d) If any Excess Liquidation Proceeds are received, the
Certificate Administrator shall establish and maintain one or more accounts
(collectively, the "Excess Liquidation Proceeds Account") to be held on behalf
and in the name of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, each Master Servicer shall withdraw from its Collection Account
and remit to the Certificate Administrator for deposit in the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received by it during the
Collection Period ending on the Determination Date immediately prior to such
Master Servicer Remittance Date. The Certificate Administrator shall also
deposit in the Excess Liquidation Proceeds Account from its own funds any
amounts required to be deposited by the Certificate Administrator pursuant to
Section 3.06 in connection with losses incurred with respect to Permitted
Investments of funds held in the Excess Liquidation Proceeds Account.
(e) The applicable Master Servicer shall segregate and hold all
funds collected and received by it in connection with the Serviced Non-Pooled
Pari Passu Companion Loans (if any) separate and apart from its own funds and
general assets. In connection therewith, such Master Servicer shall establish
and maintain one or more segregated accounts (collectively, the related
"Companion Note Custodial Account"), in which the funds described below are to
be deposited and held on behalf of the related Serviced Non-Pooled Pari Passu
Companion Loan Noteholder (and which accounts may be maintained as separately
identified sub-accounts of the applicable Collection Account, provided that for
all purposes of this Agreement (including the obligations of the applicable
Master Servicer hereunder) such accounts shall be considered to be and shall be
required to be treated as separate and distinct from the applicable Collection
Account).
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Each Companion Note Custodial Account shall be an Eligible Account. The
applicable Master Servicer shall deposit or cause to be deposited in each
Companion Note Custodial Account, within one Business Day of receipt by it or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of such Master Servicer in respect of the related Serviced
Non-Pooled Pari Passu Companion Loan subsequent to the Closing Date:
(i) all payments (from whatever source) on account of
principal of the Serviced Non-Pooled Pari Passu Companion Loan, including
Principal Prepayments;
(ii) all payments (from whatever source) on account of
interest on the Serviced Non-Pooled Pari Passu Companion Loan, including
Default Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges
received in respect of the Serviced Non-Pooled Pari Passu Companion Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of, and allocable as interest
(including Default Interest) on, principal of or Prepayment Premiums or
Yield Maintenance Charges with respect to, the subject Serviced Non-Pooled
Pari Passu Companion Loan (or any successor REO Mortgage Loan with respect
thereto);
(v) any amounts required to be deposited by the applicable
Master Servicer pursuant to Section 3.06 in connection with losses
incurred with respect to Permitted Investments of funds held in the
applicable Companion Note Custodial Account;
(vi) any amounts required to be deposited by the applicable
Master Servicer or the applicable Special Servicer pursuant to Section
3.07(b) in connection with losses on the Non-Pooled Pari Passu Companion
Loan (or any successor REO Mortgage Loan with respect thereto) resulting
from a deductible clause in a blanket or master force placed hazard
insurance policy;
(vii) any amounts required to be transferred to the
applicable Companion Note Custodial Account from the REO Account pursuant
to Section 3.16(c); and
(viii) any other amounts received and applied on the related
Non-Pooled Pari Passu Companion Loan pursuant to the related Mortgage Loan
Group Intercreditor Agreement.
Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into the applicable Companion Note Custodial Account
any amount that such Master Servicer would be authorized to withdraw immediately
from such Companion Note Custodial Account in accordance with the terms of
Section 3.05 and shall be entitled to instead pay such amount directly to the
Person(s) entitled thereto).
The foregoing requirements for deposit in each Companion Note
Custodial Account shall be exclusive. Without limiting the generality of the
foregoing, actual payments from the applicable Borrower in the nature of Escrow
Payments, assumption fees, assumption application fees, earn-out fees, extension
fees, modification fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and other fees and amounts
collected from the applicable Borrower that constitute Additional Master
Servicing Compensation and/or Additional Special Servicing Compensation, need
not be deposited by the applicable Master Servicer in the applicable Companion
Note Custodial Account. The applicable Master Servicer shall promptly deliver to
the applicable Special Servicer any of the foregoing items received by it with
respect to a Serviced Non-Pooled Pari Passu Companion Loan, if and to the extent
that such items constitute Additional Special Servicing Compensation with
respect to such Serviced Non-Pooled Pari Passu Companion Loan. If the applicable
Master Servicer shall deposit in the applicable Companion Note Custodial Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the applicable Companion Note Custodial Account, any provision
herein to the contrary notwithstanding.
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Upon receipt of any of the amounts described in clauses (i) through
(iv) of the first paragraph of this Section 3.04(e), the applicable Special
Servicer shall promptly, but in no event later than two (2) Business Days after
receipt, remit such amounts to the applicable Master Servicer for deposit into
the applicable Companion Note Custodial Account, unless the applicable Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement or because of
another appropriate reason that is consistent with the Servicing Standard. With
respect to any such amounts paid by check to the order of the applicable Special
Servicer, the Special Servicer shall endorse such check to the order of the
applicable Master Servicer (in its capacity as such), without recourse,
representation or warranty, unless the applicable Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or because of
another appropriate reason that is consistent with the Servicing Standard. Any
such amounts received by the applicable Special Servicer with respect to an REO
Property relating to the applicable Mortgage Loan Group shall be deposited by
the applicable Special Servicer into the REO Account and, insofar as such
amounts are allocable as interest on, principal of, or Prepayment Premiums or
Yield Maintenance Charges with respect to the Serviced Non-Pooled Pari Passu
Companion Loan or any successor REO Mortgage Loan with respect thereto, shall be
remitted to the applicable Master Servicer for deposit into the applicable
Companion Note Custodial Account pursuant to Section 3.16(c) (subject to the
terms of the related Mortgage Loan Group Intercreditor Agreement). Any
remittances by a Special Servicer under this paragraph may be made as part of an
aggregate remittance under this paragraph, the final paragraph of Section
3.04(a) and/or the final paragraph of Section 3.04(f).
To the extent of the applicable Non-Pooled Pari Passu Companion
Noteholder's interest therein, each Companion Note Custodial Account shall be
treated as an "outside reserve fund" within the meaning of the REMIC Provisions,
beneficially owned by the related Non-Pooled Pari Passu Companion Noteholder,
who shall be liable for any tax on its share of any reinvestment income thereon,
and who shall be deemed to receive any related reimbursements from the Trust
Fund.
(f) The applicable Master Servicer shall segregate and hold all
funds collected and received by it in connection with the Serviced Non-Pooled
Subordinate Loans separate and apart from its own funds and general assets. In
connection therewith, such Master Servicer shall establish and maintain one or
more segregated accounts (each, a "Subordinate Note Custodial Account"), in
which the funds described below are to be deposited and held on behalf of the
related Serviced Non-Pooled Subordinate Noteholder (and which accounts may be
maintained as separately identified sub-accounts of the applicable Collection
Account or, provided that for all purposes of this Agreement (including the
obligations of the applicable Master Servicer hereunder) such accounts shall be
considered to be and shall be required to be treated as separate and distinct
from the applicable Collection Account). Notwithstanding the foregoing, in no
event shall the applicable Master Servicer be required to maintain an account
separate from or that is a sub-account of the Collection Account in connection
with any Serviced Non-Pooled Subordinate Loan that is included in a related
Mortgage Loan Group (if any) that includes a PCFII Pooled Mortgage Loan,
provided, however, that notwithstanding the absence of any such separate account
or sub-account, the applicable Master Servicer, for the benefit of the Trust (as
the holder of the related Pooled Mortgage Loan), shall make deposits to and
remittances and withdrawals from the Collection Account in a manner that is
consistent with the economic effect to the Trust (as the holder of the related
Pooled Mortgage Loan) of the deposit, remittance and withdrawal provisions of
this Section 3.04(f) and Section 3.05(f). Each Subordinate Note Custodial
Account shall be an Eligible Account. The applicable Master Servicer shall
deposit or cause to be deposited in each Subordinate Note Custodial Account,
within one Business Day of receipt by it or as otherwise required hereunder, the
following payments and collections received or made by or on behalf of such
Master Servicer in respect of the related Serviced Non-Pooled Subordinate Loan
subsequent to the Closing Date:
(i) all payments (from whatever source) on account of
principal of the applicable Serviced Non-Pooled Subordinate Loan,
including Principal Prepayments;
(ii) all payments (from whatever source) on account of
interest on the applicable Serviced Non-Pooled Subordinate Loan, including
Default Interest;
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(iii) all Prepayment Premiums and Yield Maintenance Charges
received in respect of the applicable Serviced Non-Pooled Subordinate
Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of, and allocable as interest
(including Default Interest) on, principal of or Prepayment Premiums or
Yield Maintenance Charges with respect to, the applicable Serviced
Subordinate Loan (or any successor REO Mortgage Loan with respect
thereto);
(v) any amounts required to be deposited by the applicable
Master Servicer pursuant to Section 3.06 in connection with losses
incurred with respect to Permitted Investments of funds held in the
applicable Subordinate Note Custodial Account;
(vi) any amounts required to be deposited by the applicable
Master Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses on the applicable Serviced Non-Pooled Subordinate
Loan (or any successor REO Mortgage Loan with respect thereto) resulting
from a deductible clause in a blanket or master force placed hazard
insurance policy;
(vii) any amounts required to be transferred to the
applicable Subordinate Note Custodial Account from the related REO Account
pursuant to Section 3.16(c); and
(viii) any other amounts received and applied on the related
Serviced Non-Pooled Subordinate Loan pursuant to the related Mortgage Loan
Group Intercreditor Agreement.
Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into the applicable Subordinate Note Custodial Account
any amount that such Master Servicer would be authorized to withdraw immediately
from such Subordinate Note Custodial Account in accordance with the terms of
Section 3.05 and shall be entitled to instead pay such amount directly to the
Person(s) entitled thereto).
The foregoing requirements for deposit in the applicable Subordinate
Note Custodial Account shall be exclusive. Without limiting the generality of
the foregoing, actual payments from the applicable Borrower in the nature of
Escrow Payments, assumption fees, assumption application fees, earn-out fees,
extension fees, modification fees, charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and other
fees and amounts collected from the applicable Borrower that constitute
Additional Master Servicing Compensation and/or Additional Special Servicing
Compensation, need not be deposited by the applicable Master Servicer in the
applicable Subordinate Note Custodial Account. The applicable Master Servicer
shall promptly deliver to the applicable Special Servicer any of the foregoing
items received by it with respect to the applicable Serviced Non-Pooled
Subordinate Loan, if and to the extent that such items constitute Additional
Special Servicing Compensation with respect to the applicable Serviced
Non-Pooled Subordinate Loan. If the applicable Master Servicer shall deposit in
the applicable Subordinate Note Custodial Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the applicable
Subordinate Note Custodial Account, any provision herein to the contrary
notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) of the first paragraph of this Section 3.04(f), the applicable Special
Servicer shall promptly, but in no event later than two (2) Business Days after
receipt, remit such amounts to the applicable Master Servicer for deposit into
the applicable Subordinate Note Custodial Account, unless the applicable Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement or because of
another appropriate reason that is consistent with the Servicing Standard. With
respect to any such amounts paid by check to the order of the Special Servicer,
such Special Servicer shall endorse such check to the order of the applicable
Master Servicer (in its capacity as such), without recourse, representation or
warranty, unless such Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or because of another appropriate reason that is
consistent with the Servicing Standard. Any such amounts received by the
applicable Special
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Servicer with respect to an REO Property relating to the applicable Mortgage
Loan Group shall be deposited by such Special Servicer into the related REO
Account and, insofar as such amounts are allocable as interest on, principal of,
or Prepayment Premiums or Yield Maintenance Charges with respect to the
applicable Serviced Non-Pooled Subordinate Loan or any successor REO Mortgage
Loan with respect thereto, shall be remitted to the applicable Master Servicer
for deposit into the applicable Subordinate Note Custodial Account pursuant to
Section 3.16(c) (subject to the terms of the related Mortgage Loan Group
Intercreditor Agreement). Any remittances by a Special Servicer under this
paragraph may be made as part of an aggregate remittance under this paragraph,
the final paragraph of Section 3.04(a) and/or the final paragraph of Section
3.04(e).
To the extent of the applicable Serviced Non-Pooled Subordinate
Noteholder's interest therein, the Subordinate Note Custodial Account shall be
treated as an "outside reserve fund" within the meaning of the REMIC Provisions,
beneficially owned by the related Serviced Non-Pooled Subordinate Noteholder,
who shall be liable for any tax on its share of any reinvestment income thereon,
and who shall be deemed to receive any related reimbursements from the Trust
Fund.
(g) Funds in a Collection Account, the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account, each
Companion Note Custodial Account and/or each Subordinate Note Custodial Account
may be invested in Permitted Investments in accordance with the provisions of
Section 3.06. Each Master Servicer shall give notice to the other parties hereto
of the location of its Collection Account as of the Closing Date and of the new
location of its Collection Account prior to any change thereof. With respect to
each Serviced Mortgage Loan Group, the applicable Master Servicer shall give
notice to the other parties hereto and to each related Serviced Non-Pooled
Mortgage Loan Noteholder related to a Serviced Mortgage Loan Group of the
location of any related Companion Note Custodial Account and/or Subordinate Note
Custodial Account maintained by it as of the Closing Date, of the establishment
of any related Companion Note Custodial Account and/or Subordinate Note
Custodial Account after the Closing Date and of the new location of such account
prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Accounts,
the Distribution Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account,
the Companion Note Custodial Accounts and the
Subordinate Note Custodial Accounts.
(a) Subsection (I). Each Master Servicer may, from time to time,
make withdrawals from its Collection Account for any of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Certificate Administrator for deposit
in the Distribution Account (A) the Master Servicer Remittance Amount with
respect to such Master Servicer for each Master Servicer Remittance Date
and (B) any amounts that may be applied by such Master Servicer to make
P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse the Trustee or itself, as applicable, in
that order, for xxxxxxxxxxxx X&X Advances made by such Person (in each
case, with its own funds) with respect to those Pooled Mortgage Loans as
to which such Master Servicer is the applicable Master Servicer and/or any
successor REO Pooled Mortgage Loans in respect thereof, such Master
Servicer's and the Trustee's, as the case may be, respective rights to
reimbursement pursuant to this clause (ii) with respect to any P&I Advance
(other than a Nonrecoverable P&I Advance, which is reimbursable pursuant
to clause (vi) below) being limited to (subject to the operation of
subsection (II)(iii) of this Section 3.05(a)) amounts on deposit in such
Collection Account that represent Late Collections of interest and
principal Received by the Trust in respect of the particular Pooled
Mortgage Loan or REO Pooled Mortgage Loan as to which such P&I Advance was
made (net of related Master Servicing Fees);
(iii) to pay itself earned and unpaid Master Servicing Fees
with respect to those Pooled Mortgage Loans as to which it is the
applicable Master Servicer and/or any successor REO Pooled Mortgage
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Loans in respect thereof, such Master Servicer's right to payment pursuant
to this clause (iii) with respect to any such Pooled Mortgage Loan or REO
Pooled Mortgage Loan being limited to amounts on deposit in such
Collection Account that are allocable as interest on such Pooled Mortgage
Loan or REO Pooled Mortgage Loan, as the case may be;
(iv) to pay the applicable Special Servicer (or, if
applicable, any predecessor thereto) earned and unpaid Special Servicing
Fees, Workout Fees and Liquidation Fees to which it is entitled in respect
of each Specially Serviced Pooled Mortgage Loan, Corrected Pooled Mortgage
Loan and/or REO Pooled Mortgage Loan pursuant to, and from the sources
contemplated by, Section 3.11(c), but only if and to the extent that such
Special Servicing Fees, Workout Fees and Liquidation Fees relate to Pooled
Mortgage Loans and/or related REO Properties as to which such Master
Servicer is the applicable Master Servicer (and in no event shall any such
payment be made by the applicable Master Servicer in respect of a
Non-Trust-Serviced Pooled Mortgage Loan);
(v) to reimburse the Trustee, the applicable Special
Servicer or itself, as applicable, in that order, for any unreimbursed
Servicing Advances made thereby (in each case, with its own funds) with
respect to those Mortgage Loans and related REO Properties as to which
such Master Servicer is the applicable Master Servicer, such Master
Servicer's, the applicable Special Servicer's and the Trustee's, as the
case may be, respective rights to reimbursement pursuant to this clause
(v) with respect to any Servicing Advance (other than a Nonrecoverable
Servicing Advance, which is reimbursable pursuant to clause (vi) below)
being limited to (subject to the operation of subsection (II)(iii) of this
Section 3.05(a)) amounts on deposit in such Collection Account that
represent (A) payments made by the related Borrower that are allocable to
cover the item in respect of which such Servicing Advance was made, and/or
(B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and,
if applicable, REO Revenues Received by the Trust in respect of the
particular Pooled Mortgage Loan or related REO Property as to which such
Servicing Advance was made;
(vi) to reimburse the Trustee, the applicable Special
Servicer or itself, as applicable, in that order, out of such general
collections (subject to the operation of subsection (II)(iv) of this
Section 3.05(a) below) on the Mortgage Loans and any REO Properties as are
then on deposit in such Collection Account, for any unreimbursed
Nonrecoverable Advances made thereby with respect to any of the Mortgage
Loans and/or related REO Properties as to which such Master Servicer is
the applicable Master Servicer;
(vii) to pay the Trustee, the applicable Special Servicer or
itself, as applicable, in that order, any unpaid Advance Interest accrued
on Advances made by such Person with respect to Mortgage Loans and/or REO
Properties as to which such Master Servicer is the applicable Master
Servicer, such payment to be made, as and to the extent contemplated by
Section 3.31, out of amounts on deposit in such Collection Account that
represent Default Charges Received by the Trust on the Mortgage Loans or
REO Mortgage Loans as to which the subject Advance was made;
(viii) to the extent that such Master Servicer has reimbursed
or is reimbursing the Trustee, the applicable Special Servicer or itself,
as applicable, for any unreimbursed Advance with respect to any Mortgage
Loan or REO Property as to which such Master Servicer is the applicable
Master Servicer (regardless of whether such reimbursement is pursuant to
clause (ii), (v) or (vi) above, pursuant to Section 3.03(c) or Section
3.03(d) or pursuant to subsection (II) of this Section 3.05(a)), and
insofar as payment has not already been made out of related Default
Charges, and the related Default Charges then on deposit in such
Collection Account and available therefor are not sufficient to make such
payment, pursuant to clause (vii) above, to pay the Trustee, the
applicable Special Servicer or itself, as applicable, in that order, first
out of amounts on deposit in such Collection Account that represent the
remaining Liquidation Proceeds, Insurance Proceeds and/or Condemnation
Proceeds, if any, from the Pooled Mortgage Loan or REO Property to which
the Advance relates, then out of such general collections (subject to the
operation of subsection (II) of this Section 3.05(a) below) on the
Mortgage Loans and any REO Properties as are then on deposit in such
Collection Account, any related Advance Interest accrued and payable on
the portion of such Advance so reimbursed or being reimbursed;
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(ix) to pay (A) any outstanding expenses that were incurred
by the applicable Special Servicer in connection with its inspecting,
pursuant to Section 3.12(a), any Administered REO Property or any
Mortgaged Property securing a Specially Serviced Pooled Mortgage Loan as
to which such Master Servicer is the applicable Master Servicer or (B) any
other outstanding expenses incurred on behalf of the Trust with respect to
any Mortgage Loan or related REO Property as to which such Master Servicer
is the applicable Master Servicer (other than Advance Interest that is
paid pursuant to clause (vii) above, and other than Special Servicing
Fees, Workout Fees and Liquidation Fees, which are covered by clause (iv)
above) that will likely otherwise become Additional Trust Fund Expenses,
such payment to be made from amounts on deposit in such Collection Account
that represent Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds from the related Mortgage Loan or REO Property;
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay the applicable Special Servicer any items of
Additional Special Servicing Compensation, in each case on deposit in such
Collection Account from time to time;
(xi) to pay any unpaid Liquidation Expenses incurred with
respect to any Serviced Pooled Mortgage Loan or related Administered REO
Property as to which such Master Servicer is the applicable Master
Servicer, such payments to be made, first, out of amounts on deposit in
such Collection Account that represent Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds and, if applicable, REO Revenues received
with respect to such Pooled Mortgage Loan or REO Property, as the case may
be, and then, out of such general collections on the Pooled Mortgage Loans
and any REO Properties as are then on deposit in such Collection Account;
(xii) to pay, subject to and in accordance with Section
3.11(i), out of such general collections on the Pooled Mortgage Loans and
any related REO Properties as are then on deposit in such Collection
Account, servicing expenses related to the Pooled Mortgage Loans and
related REO Properties as to which such Master Servicer is the applicable
Master Servicer, which expenses would, if advanced, constitute
Nonrecoverable Servicing Advances;
(xiii) to pay, first out of amounts on deposit in such
Collection Account that represent related Liquidation Proceeds, Insurance
Proceeds and/or Condemnation Proceeds, if any, and then, out of such
general collections on the Pooled Mortgage Loans and any related REO
Properties as are then on deposit in such Collection Account, costs and
expenses incurred by the Trust pursuant to Section 3.09(c) with respect to
any Serviced Pooled Mortgage Loan or Administered REO Property as to which
such Master Servicer is the applicable Master Servicer (other than the
costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance);
(xiv) to pay itself, the applicable Special Servicer, the
Depositor, the Certificate Administrator, the Tax Administrator, the
Trustee, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, first out of amounts
on deposit in such Collection Account that represent related Liquidation
Proceeds, Insurance Proceeds and/or Condemnation Proceeds, if any, and
then, out of such general collections on the Pooled Mortgage Loans and any
REO Properties as are then on deposit in such Collection Account, any
amounts payable to any such Person pursuant to Section 6.03, Section
7.01(b), Section 8.05(b) or Section 8.13, as applicable, but only if and
to the extent that such amounts relate to Pooled Mortgage Loans and/or REO
Properties as to which such Master Servicer is the applicable Master
Servicer;
(xv) to pay, first out of amounts on deposit in such
Collection Account that represent related Liquidation Proceeds, Insurance
Proceeds and/or Condemnation Proceeds, if any, and then, out of such
general collections on the Pooled Mortgage Loans and any REO Properties as
are then on deposit in such Collection Account, (A) any reasonable
out-of-pocket cost or expense (including the reasonable fees of tax
accountants and attorneys) incurred by the Trustee pursuant to Section
3.17(a)(iii) in connection with providing advice to the
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applicable Special Servicer with respect to any REO Property as to which
such Master Servicer is the applicable Master Servicer, and (B) to the
extent not otherwise advanced by such Master Servicer, any fees and/or
expenses payable or reimbursable, as the case may be, in accordance with
Section 3.18(c), to the applicable Master Servicer or the Trustee or an
Independent third party for confirming, in accordance with such Section
3.18(c), a Fair Value determination made with respect to any Specially
Designated Defaulted Pooled Mortgage Loan as to which such Master Servicer
is the applicable Master Servicer;
(xvi) to pay itself, the applicable Special Servicer, the
Certificate Administrator, the Trustee or the Depositor, as the case may
be, any amount related to the Pooled Mortgage Loans and/or related REO
Properties as to which such Master Servicer is the applicable Master
Servicer, that is specifically required to be paid to such Person at the
expense of the Trust Fund under any provision of this Agreement and to
which reference is not made in any other clause of this Section 3.05(a),
it being acknowledged that this clause (xvi) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made;
(xvii) to pay itself, the applicable Special Servicer, any
Pooled Mortgage Loan Seller, a Controlling Class Certificateholder, any
Non-Pooled Subordinate Noteholder or any other particular Person, as the
case may be, with respect to any Pooled Mortgage Loan as to which such
Master Servicer is the applicable Master Servicer and that was previously
purchased or otherwise removed from the Trust Fund by such Person pursuant
to or as contemplated by this Agreement, all amounts received on such
Pooled Mortgage Loan subsequent to the date of purchase or other removal;
(xviii) to pay to the applicable Pooled Mortgage Loan Seller
any amounts on deposit in such Collection Account that represent Monthly
Payments due on the respective Pooled Mortgage Loans on or before the
Cut-off Date or, in the case of a Replacement Pooled Mortgage Loan, on or
before the date on which such Replacement Pooled Mortgage Loan was added
to the Trust Fund and to pay to the applicable Pooled Mortgage Loan Seller
for the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan any payments or
collections on or in respect of 0000-0000 Xxxxxx Xxxxxx Additional
Interest to which it is entitled under Section 3.19(f);
(xix) in connection with a Non-Trust-Serviced Pooled
Mortgage Loan, to pay, out of such general collections on the Pooled
Mortgage Loans and REO Properties as are then on deposit in such
Collection Account, to the related Non-Trust Master Servicer, the related
Non-Trust Special Servicer and/or the holders of the related Non-Pooled
Mortgage Loan(s), any amount reimbursable to such party by the holder of
such Non-Trust-Serviced Pooled Mortgage Loan pursuant to the terms of the
related Mortgage Loan Group Intercreditor Agreement(s) or Section 6.07;
(xx) to transfer any Excess Liquidation Proceeds on deposit
in such Collection Account to the Excess Liquidation Proceeds Account in
accordance with Section 3.04(d);
(xxi) to withdraw any amount and pay to the Person entitled
thereto any amount deposited in such Collection Account in error; and
(xxii) to clear and terminate such Collection Account at the
termination of this Agreement pursuant to Section 9.01.
provided, however, that if any expense, cost, reimbursement or other amount
otherwise permitted to be withdrawn from a Collection Account pursuant to clause
(vi) (relating to Nonrecoverable Advances), clause (ix) (relating to certain
expenses), clause (xiii) (relating to certain environmental costs) or clause
(xiv) (relating to certain indemnification and similar expenses) relates to a
Mortgage Loan in a Serviced Mortgage Loan Group, then such payment shall be
made, first, from amounts in the related Subordinate Note Custodial Account (if
any) and, then, from other collections with respect to
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such Serviced Mortgage Loan Group on deposit in the relevant Collection Account
and (unless the expense, cost, reimbursement or other amount is a Nonrecoverable
P&I Advance, in which case (for avoidance of doubt) the payment in reimbursement
thereof (after the required withdrawal from the related Subordinate Note
Custodial Account (if any)) shall be made solely from the relevant Collection
Account) any related Companion Note Custodial Account(s) (if any) (withdrawals
from such Collection Account and related Companion Note Custodial Account are to
be made pro rata according to the related Mortgage Loan Group Intercreditor
Agreement and based on the respective outstanding principal balances of the
related Pooled Mortgage Loan and the related Serviced Non-Pooled Pari Passu
Companion Loan), prior to payment from funds in such Collection Account that are
unrelated to such Serviced Mortgage Loan Group.
In addition, but subject to the succeeding paragraphs of this
Section 3.05(a), if at any time a Master Servicer is entitled to make a payment,
reimbursement or remittance from its Collection Account, the payment,
reimbursement or remittance can be made from any funds on deposit in such
Collection Account (including pursuant to clause (vi) of the preceding
paragraph) and the amounts on deposit in such Collection Account (after
withdrawing any portion of such amounts deposited in such Collection Account in
error) are insufficient to satisfy such payment, reimbursement or remittance and
the amount on deposit in the other Master Servicer's Collection Account (after
withdrawing any portion of such amounts deposited in such Collection Account in
error) is sufficient to make such payment, reimbursement or remittance, then
such other Master Servicer shall withdraw funds from its Collection Account and
make such payment, reimbursement or remittance within three (3) Business Days
following a written request therefor from the first Master Servicer, which
request is accompanied by an Officer's Certificate (1) either (x) setting forth
that the requesting Master Servicer, the applicable Special Servicer, the
Trustee, the Certificate Administrator or another particular Person, as
applicable, is entitled to such payment, reimbursement or remittance (and
setting forth the nature and amount of such payment, reimbursement or remittance
and the party entitled thereto) or (y) forwarding a copy of any Officer's
Certificate or other information provided by the applicable Special Servicer,
the Trustee, the Certificate Administrator or another particular Person, as the
case may be, that sets forth that such Person is entitled to such payment,
reimbursement or remittance (and the nature and amount of such payment,
reimbursement or remittance and the party entitled thereto) and (2) setting
forth that the requesting Master Servicer does not then have on deposit in its
Collection Account funds sufficient for such reimbursement.
If amounts on deposit in either Collection Account at any particular
time (after withdrawing any portion of such amounts deposited in such Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xx) of
the second preceding paragraph above, then the corresponding withdrawals from
such Collection Account shall be made in the following priority and subject to
the following rules: (x) if the payment, reimbursement or remittance is to be
made from a specific source of funds, then such payment, reimbursement or
remittance shall be made from that specific source of funds on a pro rata basis
with any and all other payments, reimbursements and remittances to be made from
such specific source of funds; and (y) if the payment, reimbursement or
remittance can be made from any funds on deposit in such Collection Account,
then (following any withdrawals made from such Collection Account in accordance
with the immediately preceding clause (x) of this sentence) such payment,
reimbursement or remittance shall be made from the general funds remaining on
deposit in such Collection Account on a pro rata basis with any and all other
payments, reimbursements or remittances to be made from such general funds;
provided that any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of a Collection Account pursuant to any of
clauses (ii), (v) and (vi) of the first paragraph of this Section 3.05(a)(I),
and any payments of interest thereon out of a Collection Account pursuant to
either of clauses (vii) and (viii) of the first paragraph of this Section
3.05(a)(I), shall be made (to the extent of their respective entitlements to
such reimbursements and/or payments): first, to the Trustee; and second, pro
rata, to the applicable Master Servicer and the applicable Special Servicer.
Each Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from its Collection Account pursuant to any of
clauses (ii) through (xx) of the first paragraph of this Section 3.05(a)(I).
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Each Master Servicer shall pay to the applicable Special Servicer
from such Master Servicer's Collection Account on each Master Servicer
Remittance Date amounts permitted to be paid to the applicable Special Servicer
therefrom based upon an Officer's Certificate received from such Special
Servicer on the first Business Day following the immediately preceding
Determination Date, describing the item and amount to which such Special
Servicer is entitled. Each Master Servicer may rely conclusively on any such
certificate and shall have no duty to re-calculate the amounts stated therein.
Each Special Servicer shall keep and maintain separate accounting for each
Specially Serviced Mortgage Loan and REO Property as to which it is the
applicable Special Servicer on a loan-by-loan and property-by-property basis,
for the purpose of justifying any request thereby for withdrawal from a
Collection Account.
Subsection (II). The provisions of this subsection (II) of this
Section 3.05(a) shall apply notwithstanding any contrary provision of subsection
(I) of this Section 3.05(a):
(i) Identification of Workout-Delayed Reimbursement
Amounts: If any Advance made with respect to any Mortgage Loan on or
before the date on which such Mortgage Loan becomes (or, but for the
making of three monthly payments under its modified terms, would then
constitute) a Corrected Mortgage Loan, together with (to the extent
theretofore accrued and unpaid) Advance Interest thereon, is not pursuant
to the operation of the provisions of Section 3.05(a)(I) reimbursed to the
Person who made such Advance on or before the date, if any, on which such
Mortgage Loan becomes a Corrected Mortgage Loan (or, but for the making of
three monthly payments under its modified terms, would constitute a
Corrected Mortgage Loan), such Advance, together with such Advance
Interest, shall constitute a "Workout-Delayed Reimbursement Amount" to the
extent that such amount has not been determined to constitute a
Nonrecoverable Advance. All references herein to "Workout-Delayed
Reimbursement Amount" shall be construed always to mean the related
Advance and (to the extent theretofore accrued and unpaid) any Advance
Interest thereon, together with (to the extent it remains unpaid) any
further Advance Interest that accrues on the unreimbursed portion of such
Advance from time to time in accordance with the other provisions of this
Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the
right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii)
below (subject to the terms, conditions and limitations thereof) sets
forth the terms of and conditions to the right of a Person to be
reimbursed for any Workout-Delayed Reimbursement Amount to the extent that
such Person is not otherwise entitled to reimbursement and payment of such
Workout-Delayed Reimbursement Amount pursuant to the operation of Section
3.05(a)(I) above (construed without regard to the reference therein to
this subsection except that it is nonetheless hereby acknowledged that,
for purposes of "Late Collections" in subsection 3.05(a)(I), funds
received on the related Mortgage Loan shall be applied in accordance with
the terms of the applicable modification even though such application may
result in an Advance continuing to be outstanding when the Borrower is
current in its payments under the terms of the Mortgage Loan as modified).
Subsection (iv) below (subject to the terms, conditions and limitations
thereof) authorizes the Master Servicer, under certain circumstances, to
abstain from reimbursing itself (or, if applicable, the Trustee to abstain
from obtaining reimbursement) for Nonrecoverable Advances at its sole
option. Upon any determination that all or any portion of a
Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance,
then the reimbursement or payment of such amount (and any further Advance
Interest that may accrue thereon) shall cease to be subject to the
operation of subsection (iii) below, such amount (and further Advance
Interest) shall be as fully payable and reimbursable to the relevant
Person as would any other Nonrecoverable Advance (and Advance Interest
thereon) and, as a Nonrecoverable Advance, such amount may become the
subject of a Master Servicer's (or, if applicable, the Trustee's) exercise
of its sole option authorized by subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement
Amounts: The applicable Master Servicer, the applicable Special Servicer
and the Trustee, as applicable, shall be entitled to reimbursement and
payment (and, notwithstanding any contrary provision of subsection (I)
above, shall be entitled to withdraw and pay to itself the amount of such
reimbursement and payment) for all Workout-Delayed Reimbursement Amounts
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in each Collection Period (and it is again hereby acknowledged that, for
purposes of "Late Collections" in subsection 3.05(a)(I), funds received on
the related Mortgage Loan shall be applied in accordance with the terms of
the applicable modification even though such application may result in an
Advance continuing to be outstanding when the Borrower is current in its
payments under the terms of the Mortgage Loan as modified); provided,
however, that the aggregate amount (for all such Persons collectively) of
such reimbursements and payments from amounts advanced or collected on the
Mortgage Pool in such Collection Period shall not exceed (and the
reimbursement and payment shall be made from) the aggregate principal
portions of P&I Advances and principal collections and recoveries on the
Mortgage Pool for such Collection Period contemplated by clauses (i)
through (v) of the definition of "Unadjusted Principal Distribution
Amount", net of the aggregate deduction amounts for (x) Special Servicing
Fees, Liquidation Fees and/or Advance Interest with respect to Pooled
Mortgage Loans or REO Properties that were paid hereunder from a source
other than related Default Charges during the related Collection Period,
as described by clause (II)(A) of the definition of "Principal
Distribution Amount", and (y) Nonrecoverable Advances (and accrued and
unpaid Advance Interest thereon) that were reimbursed or paid during the
related Collection Period from principal collections on the Mortgage Pool,
as described by clause (II)(C) of the definition of "Principal
Distribution Amount" and pursuant to subsection (iv) of this Section
3.05(a)(II). As and to the extent provided in clause (II)(B) of the
definition thereof, the Principal Distribution Amount for the Distribution
Date related to such Collection Period shall be reduced to the extent that
such payment or reimbursement of a Workout-Delayed Reimbursement Amount is
made from aggregate principal collections pursuant to the preceding
sentence.
Any collections (as applied under Section 1.03) received on or
in respect of the Pooled Mortgage Loans during a Collection Period that,
in each case, represents a delinquent amount as to which an Advance had
been made, which Advance was previously reimbursed during the Collection
Period for a prior Distribution Date as part of a Workout-Delayed
Reimbursement Amount, shall be added to and constitute a part of the
Principal Distribution Amount for the related Distribution Date (pursuant
to clause (I)(B) of the definition of "Principal Distribution Amount") to
the extent of all Workout-Delayed Reimbursement Amounts on or in respect
of such respective Mortgage Loan that were reimbursed from collections of
principal on the Mortgage Pool in all prior Collection Periods pursuant to
the preceding paragraph.
The Certificate Administrator (and, with respect to Advances
made by a Master Servicer, the Trustee or any Fiscal Agent) shall be
entitled to rely conclusively upon any direction or notice received from
either Master Servicer in connection with any determination made by such
Master Servicer pursuant to the foregoing provisions of this Section
3.05(a)(II)(iii) and shall not be obligated to independently verify,
monitor or oversee any such determination.
(iv) Sole Option to Abstain from Reimbursements of Certain
Nonrecoverable Advances. To the extent that Section 3.05(a)(I) (as
construed without regard to this subsection (iv)) otherwise entitles a
Master Servicer, a Special Servicer or the Trustee to reimbursement for
any Nonrecoverable Advance (or payment of Advance Interest thereon from a
source other than Default Charges on the related Mortgage Loan) during any
Collection Period, then, notwithstanding any contrary provision of
subsection (I) above, (a) to the extent that one or more such
reimbursements and payments of Nonrecoverable Advances (and such Advance
Interest thereon) are made, they shall be made, first, from the aggregate
principal portions of P&I Advances and principal collections and
recoveries on the Mortgage Pool for such Collection Period contemplated by
clauses (i) through (v) of the definition of "Unadjusted Principal
Distribution Amount", net of the aggregate deduction amounts for Special
Servicing Fees, Liquidation Fees and/or Advance Interest with respect to
Pooled Mortgage Loans or REO Properties that were paid hereunder from a
source other than related Default Charges during the related Collection
Period, as described by clause (II)(A) of the definition of "Principal
Distribution Amount", and then from other amounts advanced or collected on
the Mortgage Pool for such Collection Period; provided that, except in
extraordinary circumstances, such Master Servicer, such Special Servicer
or the Trustee, as applicable, shall provide each of S&P, Fitch and DBRS
with at least 15 days notice before any reimbursement shall be made of a
Nonrecoverable Advance (or payment of Advance Interest thereon from a
source other than Default Charges on
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the related Mortgage Loan) from such other amounts advanced or collected
on the Mortgage Pool for such Collection Period, and (b) if and to the
extent that the amount of such a Nonrecoverable Advance (and Advance
Interest thereon), together with all Nonrecoverable Advances (and Advance
Interest thereon) theretofore reimbursed during such Collection Period,
would exceed the aggregate principal portions of P&I Advances and
principal collections and recoveries on the Mortgage Pool for such
Collection Period contemplated by clauses (i) through (v) of the
definition of "Unadjusted Principal Distribution Amount", net of the
aggregate deduction amounts for such Special Servicing Fees, Liquidation
Fees and/or Advance Interest described by clause (II)(A) of the definition
of "Principal Distribution Amount", such Master Servicer, such Special
Servicer and/or the Trustee, as applicable, if it made the relevant
Advance) is hereby authorized (but shall not be construed to have any
obligation whatsoever), if it elects at its sole option, to abstain from
reimbursing itself or obtaining reimbursement (notwithstanding that it is
entitled to such reimbursement) during that Collection Period for all or a
portion of such Nonrecoverable Advance (and Advance Interest thereon),
provided that the aggregate amount that is the subject of the exercise of
such option with respect to all Nonrecoverable Advances (and Advance
Interest thereon) with respect to all Mortgage Loans for any particular
Collection Period is less than or equal to such excess described above in
this clause (b). If a Master Servicer (or the Trustee, as applicable)
makes such an election at its sole option to defer reimbursement with
respect to all or a portion of a Nonrecoverable Advance (and Advance
Interest thereon), then such Nonrecoverable Advance (and Advance Interest
thereon) or portion thereof shall continue to be fully reimbursable in any
subsequent Collection Period. In connection with a potential election by a
Master Servicer (or the Trustee, as applicable) to abstain from the
reimbursement of a particular Nonrecoverable Advance or portion thereof
during the Collection Period for any Distribution Date, each Master
Servicer (or the Trustee, as applicable) shall further be authorized to
wait for principal collections to be received before making its
determination of whether to abstain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof.
Any collections (as applied under Section 1.03) received on
the Pooled Mortgage Loans during a Collection Period that, in each case,
represents a recovery of an amount determined in a prior Collection Period
to have been a Nonrecoverable Advance shall be added to and constitute a
part of the Principal Distribution Amount for the related Distribution
Date (pursuant to clause (I)(C) of the definition of "Principal
Distribution Amount") to the extent of all Nonrecoverable Advances on such
respective Mortgage Loan that were reimbursed from collections of
principal on the Mortgage Pool in all prior Collection Periods pursuant to
the preceding paragraph.
None of the Master Servicer or the Trustee shall have any
liability whatsoever for making an election, or refraining from making an
election, that is authorized under this subsection (II)(iv). The foregoing
shall not, however, be construed to limit any liability that may otherwise
be imposed on such Person for any failure by such Person to comply with
the conditions to making such an election under this subsection (II)(iv)
or to comply with the terms of this subsection (II)(iv) and the other
provisions of this Agreement that apply once such an election, if any, has
been made.
Any election by a Master Servicer (or the Trustee, as
applicable) to abstain from reimbursing itself for any Nonrecoverable
Advance (and Advance Interest thereon) or portion thereof with respect to
any Collection Period shall not be construed to impose on such Master
Servicer (or the Trustee, as applicable) any obligation to make such an
election (or any entitlement in favor of any Certificateholder or any
other Person to such an election) with respect to any subsequent
Collection Period or to constitute a waiver or limitation on the right of
such Master Servicer (or the Trustee, as applicable) to otherwise be
reimbursed for such Nonrecoverable Advance (and Advance Interest thereon).
Any such election by one of the Master Servicers or the Trustee shall not
be construed to impose any duty on any other such party to make such an
election (or any entitlement in favor of any Certificateholder or any
other Person to such an election). Any such election by any such party to
abstain from reimbursing itself or obtaining reimbursement for any
Nonrecoverable Advance or portion thereof with respect to any one or more
Collection Periods shall not limit the accrual of Advance Interest on such
Nonrecoverable Advance for the period prior to the actual reimbursement of
such Nonrecoverable Advance. None of the Master Servicers, the Trustee or
the other parties to this Agreement shall have any liability to one
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another or to any of the Certificateholders or any of the Non-Pooled
Mortgage Loan Noteholders for any such election that such party makes as
contemplated by this subsection or for any losses, damages or other
adverse economic or other effects that may arise from such an election.
The foregoing statements in this paragraph shall not limit the generality
of the statements made in the immediately preceding paragraph.
The Certificate Administrator (and, with respect to Advances
made by a Master Servicer and the Trustee) shall be entitled to rely
conclusively upon any direction or notice received from either Master
Servicer in connection with any determination made by such Master Servicer
pursuant to the foregoing provisions of this Section 3.05(a)(II)(iv) and
shall not be obligated to independently verify, monitor or oversee any
such determination.
(v) Deferral is Not Subordination. No determination by a
Master Servicer (or the Trustee, as applicable) to exercise its sole
option to defer the reimbursement of Advances and/or Advance Interest
under subsection (iv) shall be construed as an agreement by such Master
Servicer (or the Trustee, as applicable) to subordinate (in respect of
realizing losses), to any Class of Certificates, such party's right to
such reimbursement during such period of deferral.
(b) The Certificate Administrator shall, from time to time, make
withdrawals from the Distribution Account for each of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make distributions to the Holders of the REMIC III
Regular Interests on each Distribution Date pursuant to Section 4.01;
(ii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Loans to the Interest Reserve Account as and when
required by Section 3.04(c);
(iii) to pay itself, the Tax Administrator, either Master
Servicer, either Primary Servicer, any Special Servicer, the Depositor,
the Trustee or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, any amounts payable to
any such Person pursuant to Section 6.03, Section 7.01(b), Section 8.05 or
Section 8.13, as applicable, if and to the extent such amounts are not
payable out of a Collection Account pursuant to Section 3.05;
(iv) to pay any and all federal, state and local taxes
imposed on any REMIC Pool or on the assets or transactions of any REMIC
Pool, together with all incidental costs and expenses, and any and all
expenses relating to tax audits, if and to the extent that either (A) none
of the parties hereto are liable therefor pursuant to Section 10.01(b)
and/or Section 10.01(f) or (B) any such Person that may be so liable has
failed to timely make the required payment;
(v) to pay for the cost of the Opinions of Counsel as
contemplated by Section 12.01(a) or Section 12.01(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;
(vi) to pay itself Net Investment Earnings earned on funds
in the Distribution Account for each Collection Period;
(vii) to pay for the cost of recording this Agreement
pursuant to Section 12.02(a);
(viii) to pay to any party hereto any amounts deposited or
remitted by such Person for deposit into the Distribution Account in
error; and
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(ix) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2008), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Certificate Administrator shall withdraw from the Interest Reserve Account and
deposit in the Distribution Account all Interest Reserve Amounts in respect of
the Interest Reserve Loans then on deposit in the Interest Reserve Account. In
addition, the Certificate Administrator shall, from time to time, make
withdrawals from the Interest Reserve Account to pay itself interest or other
income earned on deposits in the Interest Reserve Account, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to the Interest Reserve Account for each Collection Period).
(d) On the Business Day prior to each Distribution Date, the
Certificate Administrator shall withdraw from the Excess Liquidation Proceeds
Account and deposit in the Distribution Account, for distribution on such
Distribution Date, an amount equal to the lesser of (i) the entire amount of
Excess Liquidation Proceeds, if any, then on deposit in the Excess Liquidation
Proceeds Account and (ii) the excess, if any, of the aggregate amount
distributable on such Distribution Date pursuant to Section 4.01(a), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Certificate Administrator shall withdraw from the Excess
Liquidation Proceeds Account and deposit in the Distribution Account, for
distribution on such Distribution Date, any and all Excess Liquidation Proceeds
then on deposit in the Excess Liquidation Proceeds Account. In addition, the
Certificate Administrator shall, from time to time, make withdrawals from the
Excess Liquidation Proceeds Account to pay itself interest or other income
earned on deposits in the Excess Liquidation Proceeds Account, in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to the Excess Liquidation Proceeds Account for each Collection
Period).
(e) The Certificate Administrator, the Trustee, the Depositor,
each Master Servicer, each Primary Servicer and the Special Servicer, as
applicable, shall in all cases have a right prior to the Certificateholders to
any particular funds on deposit in the Collection Accounts and the Distribution
Account from time to time for the reimbursement or payment of compensation,
Advances (with interest thereon at the Reimbursement Rate) and their respective
expenses hereunder, but only if and to the extent such compensation, Advances
(with such interest) and expenses are to be reimbursed or paid from such
particular funds on deposit in such Collection Account or the Distribution
Account pursuant to the express terms of this Agreement.
(f) The applicable Master Servicer may, from time to time, make
withdrawals from the Companion Note 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 applicable Serviced Non-Pooled Pari
Passu Companion Loan Noteholder the amounts to which the applicable
Serviced Non-Pooled Pari Passu Companion Loan Noteholder is entitled in
accordance with the last paragraph of this Section 3.05(f), as and when
required by such paragraph;
(ii) to pay to itself earned and unpaid Master Servicing
Fees in respect of the related Serviced Non-Pooled Pari Passu Companion
Loan or any successor REO Mortgage Loan with respect thereto;
(iii) to pay to the applicable Special Servicer earned and
unpaid Special Servicing Fees in respect of the related Serviced
Non-Pooled Pari Passu Companion Loan or any successor REO Mortgage Loan
with respect thereto;
(iv) to pay the applicable Special Servicer (or, if
applicable, any predecessor thereto) earned and unpaid Workout Fees and
Liquidation Fees to which it is entitled with respect to the related
Serviced Non-
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Pooled Pari Passu Companion Loan or any successor REO Mortgage Loan with
respect thereto pursuant to, and from the sources contemplated by, the
second and third paragraphs of Section 3.11(c);
(v) to pay the applicable Special Servicer (or, if
applicable, any predecessor thereto) any earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled with respect to the related
Serviced Non-Pooled Pari Passu Companion Loan or any successor REO
Mortgage Loan with respect thereto, but which is payable out of amounts
collected on or with respect to the related Serviced Non-Pooled Pari Passu
Companion Loan or any successor REO Mortgage Loan with respect thereto,
pursuant to the second and third paragraphs of Section 3.11(c);
(vi) to reimburse itself, the applicable Special Servicer
or the Trustee, as applicable, for any unreimbursed Servicing Advances
made thereby (in each case, with its own funds) with respect to the
related Serviced Mortgage Loan Group or any related REO Property (but only
to the extent that either amounts are on deposit in the Collection Account
and such Companion Note Custodial Account collectively that represent
collections of amounts that were the subject of such Servicing Advances or
such Servicing Advances have been determined to constitute Nonrecoverable
Advances);
(vii) to pay itself, the applicable Special Servicer or the
Trustee, as applicable, any Advance Interest then due and owing to such
Person with respect to any Servicing Advance made by such Person (out of
its own funds) with respect to the related Serviced Mortgage Loan Group or
any successor REO Mortgage Loan with respect thereto (but only to the
extent that the related Advance has been or is being reimbursed and the
related Default Charges available therefor are not sufficient to make such
payment of Advance Interest);
(viii) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the applicable Special Servicer any items of
Additional Special Servicing Compensation, in each case on deposit in such
Companion Note Custodial Account from time to time;
(ix) to pay any unpaid Liquidation Expenses incurred with
respect to the related Serviced Mortgage Loan Group or any related REO
Property (but only to the extent that amounts specifically allocable to
such purpose have not been deposited in the applicable Collection
Account);
(x) to pay, in accordance with Section 3.11(i), certain
servicing expenses with respect to the related Serviced Mortgage Loan
Group or any related REO Property, which expenses would, if advanced,
constitute Nonrecoverable Servicing Advances (but only to the extent that
amounts specifically allocable to such purpose have not been deposited in
the applicable Collection Account);
(xi) to pay any costs and expenses incurred by the Trust
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) with respect to the related Serviced Mortgage Loan Group or any
related REO Property (but only to the extent that amounts specifically
allocable to such purpose have not been deposited in the applicable
Collection Account);
(xii) to pay itself, the applicable Special Servicer, the
Depositor, the Trustee, or any of their respective directors, officers,
members, managers, employees and agents, as the case may be, any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable, in connection with the
related Serviced Mortgage Loan Group or any related REO Property (but only
to the extent that amounts specifically allocable to such purpose have not
been deposited in the applicable Collection Account);
(xiii) to pay to itself, the applicable Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the related Serviced
Non-Pooled Pari Passu Companion Loan Noteholder under any provision of
this Agreement or the related Mortgage
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Loan Group Intercreditor Agreement to which reference is not made in any
other clause of this Section 3.05(f), it being acknowledged that this
clause (xiii) shall not be construed to modify any limitation otherwise
set forth in this Agreement on the time at which any Person is entitled to
payment or reimbursement of any amount or the funds from which any such
payment or reimbursement is permitted to be made;
(xiv) to withdraw any amount and pay to the Person entitled
thereto any amount deposited in such Companion Note Custodial Account in
error; and
(xv) to clear and terminate such Companion Note Custodial
Account at the termination of this Agreement pursuant to Section 9.01 or
at such time as the related Serviced Mortgage Loan Group or any related
REO Property is no longer serviced hereunder;
provided, however, that in connection with any expense, cost, reimbursement or
other amount otherwise permitted to be withdrawn from a Companion Note Custodial
Account pursuant to clause (vi) (relating to Servicing Advances), clause (vii)
(relating to Advance Interest on Servicing Advances), clause (ix) (relating to
Liquidation Expenses), clause (x) (relating to Nonrecoverable Servicing
Advances), clause (xi) (relating to certain environmental expenses) or clause
(xii) (relating to certain indemnification and similar expenses), such payment
shall be made, first, from any amounts in the related Subordinate Note Custodial
Account (if any) and, then, from other collections with respect to the related
Serviced Mortgage Loan Group on deposit in the relevant Collection Account and
all related Companion Note Custodial Account(s) (withdrawals from those accounts
to be made pro rata according to the related Mortgage Loan Group Intercreditor
Agreement and based on the respective outstanding principal balances of the
related Pooled Mortgage Loan and related Serviced Non-Pooled Pari Passu
Companion Loan).
Notwithstanding any contrary provision above, any reimbursements of
Servicing Advances out of such Companion Note Custodial Account shall be made
(to the extent of their respective entitlements to such reimbursements and/or
payments): first, to the Trustee; second, to the Special Servicer; and third, to
the applicable Master Servicer.
The applicable Master Servicer shall pay to the applicable Special
Servicer from the related Companion Note Custodial Account amounts permitted to
be paid to the applicable Special Servicer therefrom in respect of Special
Servicing Fees, Workout Fees or otherwise, such payment (other than a payment of
Special Servicing Fees and other than a payment of Workout Fees arising from
collections other than the initial collection on a Corrected Mortgage Loan) to
be based upon a written statement of the applicable Special Servicer describing
the item and amount to which the Special Servicer is entitled. The applicable
Master Servicer may rely conclusively on any such certificate and shall have no
duty to re-calculate the amounts stated therein.
The Trustee, the Depositor, the applicable Master Servicer and the
Special Servicer shall in all cases have a right prior to the related Serviced
Non-Pooled Pari Passu Companion Loan Noteholder to any particular funds on
deposit in a Companion Note Custodial Account from time to time for the
reimbursement or payment of compensation, Servicing Advances (with interest
thereon at the Reimbursement Rate) and their respective expenses hereunder, but
only if and to the extent such compensation, Servicing Advances (with interest)
and expenses are to be reimbursed or paid from such funds on deposit in such
Companion Note Custodial Account pursuant to the express terms of this Agreement
and/or the related Mortgage Loan Group Intercreditor Agreement.
The applicable Master Servicer shall withdraw from the Companion
Note Custodial Account and pay to the related Serviced Non-Pooled Pari Passu
Companion Loan Noteholder (in accordance with such Person's written
instructions) all amounts received on or with respect to the related Serviced
Non-Pooled Pari Passu Companion Loan or any successor REO Mortgage Loan with
respect thereto that are deposited in such Companion Note Custodial Account
(exclusive of any portion of those amounts which the applicable Master Servicer
has actual knowledge are then payable or reimbursable to any Person pursuant to
any of clauses (ii) through (xiii) of the first paragraph of this Section
3.05(f)) on the Business Day following the applicable Master Servicer's receipt
of such amounts.
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(g) The applicable Master Servicer may, from time to time, make
withdrawals from each Subordinate Note 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 applicable Serviced Non-Pooled
Subordinate Noteholder the amounts to which the applicable Serviced
Non-Pooled Subordinate Noteholder is entitled in accordance with the last
paragraph of this Section 3.05(g), as and when required by such paragraph;
(ii) to pay to itself earned and unpaid Master Servicing
Fees in respect of the related Serviced Non-Pooled Subordinate Loan or any
successor REO Mortgage Loan with respect thereto;
(iii) to pay to the applicable Special Servicer earned and
unpaid Special Servicing Fees in respect of the related Serviced
Non-Pooled Subordinate Loan or any successor REO Mortgage Loan with
respect thereto;
(iv) to pay the applicable Special Servicer (or, if
applicable, any predecessor thereto) earned and unpaid Workout Fees and
Liquidation Fees to which it is entitled with respect to the related
Serviced Non-Pooled Subordinate Loan or any successor REO Mortgage Loan
with respect thereto pursuant to, and from the sources contemplated by,
the second and third paragraphs of Section 3.11(c);
(v) to pay the applicable Special Servicer (or, if
applicable, any predecessor thereto) any earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled with respect to the related
Serviced Non-Pooled Subordinate Loan or any successor REO Mortgage Loan
with respect thereto, but which is payable out of amounts collected on or
with respect to the related Serviced Non-Pooled Subordinate Loan or any
successor REO Mortgage Loan with respect thereto, pursuant to the second
and third paragraphs of Section 3.11(c);
(vi) to reimburse itself, the applicable Special Servicer
or the Trustee, as applicable, for any unreimbursed Servicing Advances
made thereby (in each case, with its own funds) with respect to the
related Serviced Mortgage Loan Group or any related REO Property (but only
to the extent that amounts specifically allocable to such purpose have not
been deposited in the applicable Collection Account);
(vii) to pay itself, the applicable Special Servicer or the
Trustee, as applicable, any Advance Interest then due and owing to such
Person with respect to any Servicing Advance made by such Person (out of
its own funds) with respect to the related Serviced Mortgage Loan Group or
any successor REO Mortgage Loan with respect thereto;
(viii) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the applicable Special Servicer any items of
Additional Special Servicing Compensation with respect to the related
Serviced Mortgage Loan Group, in each case on deposit in such Subordinate
Note Custodial Account from time to time;
(ix) to pay any unpaid Liquidation Expenses incurred with
respect to the related Serviced Mortgage Loan Group or any related REO
Property (but only to the extent that amounts specifically allocable to
such purpose have not been deposited in the applicable Collection
Account);
(x) to pay, in accordance with Section 3.11(i), certain
servicing expenses with respect to the related Serviced Mortgage Loan
Group or any related REO Property, which expenses would, if advanced,
constitute Nonrecoverable Servicing Advances (but only to the extent that
amounts specifically allocable to such purpose have not been deposited in
the applicable Collection Account);
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(xi) to pay any costs and expenses incurred by the Trust
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) with respect to the related Serviced Mortgage Loan Group or any
related REO Property (but only to the extent that amounts specifically
allocable to such purpose have not been deposited in the applicable
Collection Account);
(xii) to pay itself, the applicable Special Servicer, the
Depositor, the Trustee, or any of their respective directors, officers,
members, managers, employees and agents, as the case may be, any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable, in connection with the
related Serviced Mortgage Loan Group or any related REO Property (but only
to the extent that amounts specifically allocable to such purpose have not
been deposited in the applicable Collection Account);
(xiii) to pay to itself, the applicable Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the related Serviced
Non-Pooled Subordinate Noteholder under any provision of this Agreement or
the related Mortgage Loan Group Intercreditor Agreement to which reference
is not made in any other clause of this Section 3.05(g), it being
acknowledged that this clause (xiii) shall not be construed to modify any
limitation otherwise set forth in this Agreement on the time at which any
Person is entitled to payment or reimbursement of any amount or the funds
from which any such payment or reimbursement is permitted to be made;
(xiv) to withdraw any amount and pay to the Person entitled
thereto any amount deposited in such Subordinate Note Custodial Account in
error; and
(xv) to clear and terminate such Subordinate Note Custodial
Account at the termination of this Agreement pursuant to Section 9.01 or
at such time as the related Serviced Mortgage Loan Group or any related
REO Property is no longer serviced hereunder.
provided, however, that in connection with any expense, cost, reimbursement or
other amount otherwise permitted to be withdrawn from a Subordinate Note
Custodial Account pursuant to clause (vi) (relating to Servicing Advances),
clause (vii) (relating to Advance Interest on Servicing Advances), clause (ix)
(relating to Liquidation Expenses), clause (x) (relating to Nonrecoverable
Servicing Advances), clause (xi) (relating to certain environmental expenses) or
clause (xii) (relating to certain indemnification and similar expenses), if
amounts on deposit in such Subordinate Note Custodial Account at any particular
time are insufficient to satisfy such payment or reimbursement, such payment or
reimbursement shall be made from collections with respect to the related
Serviced Mortgage Loan Group on deposit in the relevant Collection Account and
the related Companion Note Custodial Account (if any) (withdrawals from those
accounts to be made pro rata according to the related Mortgage Loan Group
Intercreditor Agreement and based on the respective outstanding principal
balances of the related Pooled Mortgage Loan and the related Non-Pooled Mortgage
Loan), but, to the extent that the amount is so paid from the relevant
Collection Account and/or Companion Note Custodial Account and funds that would
otherwise have been available in the Subordinate Note Custodial Account and used
to pay such amount are subsequently collected or recovered, then such funds
shall be deposited into such Collection Account and/or Companion Note Custodial
Account.
Notwithstanding any contrary provision above, any reimbursements of
Servicing Advances out of such Subordinate Note Custodial Account shall be made
(to the extent of their respective entitlements to such reimbursements and/or
payments): first, to the Trustee; second, to the applicable Special Servicer;
and third, to the applicable Master Servicer.
The applicable Master Servicer shall pay to the applicable Special
Servicer from the related Subordinate Note Custodial Account amounts permitted
to be paid to the applicable Special Servicer therefrom in respect of Special
Servicing Fees, Workout Fees or otherwise, such payment (other than a payment of
Special Servicing Fees and other than a payment of Workout Fees arising from
collections other than the initial collection on a Corrected Mortgage Loan) to
be based upon a written statement of the applicable Special Servicer describing
the item and amount to which the applicable
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Special Servicer is entitled. The applicable Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein.
The Trustee, the Depositor, the applicable Master Servicer and the
applicable Special Servicer shall in all cases have a right prior to the related
Serviced Non-Pooled Subordinate Noteholder to any particular funds on deposit in
a Subordinate Note Custodial Account from time to time for the reimbursement or
payment of compensation, Servicing Advances (with interest thereon at the
Reimbursement Rate) and their respective expenses hereunder, but only if and to
the extent such compensation, Servicing Advances (with interest) and expenses
are to be reimbursed or paid from such funds on deposit in such Subordinate Note
Custodial Account pursuant to the express terms of this Agreement and/or the
related Mortgage Loan Group Intercreditor Agreement.
The applicable Master Servicer shall withdraw from the applicable
Subordinate Note Custodial Account and pay to the related Serviced Non-Pooled
Subordinate Noteholder (in accordance with such Person's written instructions)
all amounts received on or with respect to the related Serviced Non-Pooled
Subordinate Loan or any successor REO Mortgage Loan with respect thereto that
are deposited in such Subordinate Note Custodial Account (exclusive of any
portion of those amounts which the applicable Master Servicer has actual
knowledge are then payable or reimbursable to any Person pursuant to any of
clauses (ii) through (xiii) of the first paragraph of this Section 3.05(g)) on
the Business Day following the applicable Master Servicer's receipt of such
amounts.
SECTION 3.06. Investment of Funds in the Accounts.
(a) Each applicable Master Servicer may direct (pursuant to a
standing order or otherwise) any depositary institution (including the
Certificate Administrator) that holds its Collection Account or any Companion
Note Custodial Account, Subordinate Note Custodial Account, Servicing Account or
Reserve Account maintained by it, the applicable Special Servicer may direct
(pursuant to a standing order or otherwise) any depositary institution
(including the Certificate Administrator) that holds the REO Account, and the
Certificate Administrator may direct (pursuant to a standing order or otherwise)
any depositary institution that holds the Distribution Account, the Interest
Reserve Account or the Excess Liquidation Proceeds Account to invest, or if any
of the Master Servicers, the Special Servicers or the Certificate Administrator,
as appropriate, is such depositary institution, such Master Servicer, such
Special Servicer or the Certificate Administrator, as the case may be, may
invest itself, the funds held therein in (but only in) one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
Investment Account pursuant to this Agreement or the related Mortgage Loan
Documents, as applicable, or with respect to Permitted Investments of funds held
in the Distribution Account, no later than 11:00 a.m., New York City time, on
the next succeeding Distribution Date; provided that any such investment of
funds in any Servicing Account or Reserve Account shall be subject to applicable
law and the terms of the related Mortgage Loan Documents; and provided, further,
that the funds in any Investment Account shall remain uninvested unless and
until the applicable Master Servicer, the applicable Special Servicer or the
Certificate Administrator, as appropriate, gives timely investment instructions
with respect thereto pursuant to or as contemplated by this Section 3.06. All
such Permitted Investments shall be held to maturity, unless payable on demand.
Any investment of funds in an Investment Account shall be made in the name of
the Trustee (in its capacity as such). Each applicable Master Servicer (with
respect to Permitted Investments of amounts in its Collection Account or any
Companion Note Custodial Account, Subordinate Note Custodial Account, Servicing
Account or Reserve Account maintained by it), the applicable Special Servicer
(with respect to Permitted Investments of amounts in the REO Account), and the
Certificate Administrator (with respect to Permitted Investments of amounts in
the Distribution Account, the Interest Reserve Account or the Excess Liquidation
Proceeds Account) acting on behalf of the Trustee, shall (and Trustee hereby
designates the applicable Master Servicer, the Special Servicer or the
Certificate Administrator, as the case may be, as the Person that 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
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by a Master Servicer, a Special
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Servicer or the Certificate Administrator shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee for purposes of Revised
Article 8 (1994 Revision) of the UCC. If amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the party hereunder that maintains such Investment Account (whether it is a
Master Servicer, a Special Servicer or the Certificate Administrator), shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount at least equal to the lesser of (1) all amounts then
payable thereunder and (2) the amount required to be withdrawn
on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by such Master Servicer, such Special Servicer
or the Certificate Administrator, as the case may be, that
such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in such
Investment Account.
(b) Whether or not a Master Servicer directs the investment of
funds in any Investment Account (other than a Servicing Account or Reserve
Account) maintained by it, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of such Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05. Whether or not a Master Servicer directs the
investment of funds in any Servicing Account or Reserve Account maintained by
it, interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for such Investment Account for
each Collection Period, and subject to the requirements of applicable law or the
terms of the related Serviced Mortgage Loan(s) regarding the payment of such
interest and investment income to the related Borrower, shall be for the sole
and exclusive benefit of such Master Servicer and shall be subject to withdrawal
from time to time in accordance with Section 3.03. Whether or not a Special
Servicer directs the investment of funds in the REO Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of such Special Servicer and
shall be subject to its withdrawal in accordance with Section 3.16(b). Whether
or not the Certificate Administrator directs the investment of funds in the
Distribution Account, the Interest Reserve Account or the Excess Liquidation
Proceeds Account, 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 Collection Period, shall be for the sole and
exclusive benefit of the Certificate Administrator and shall be subject to its
withdrawal in accordance with Section 3.05. If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
party hereunder that maintains such Investment Account (whether it is a Master
Servicer, a Special Servicer or the Certificate Administrator), shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, in respect of such Investment Account
for such Collection Period (except, in the case of any such loss with respect to
a Servicing Account or Reserve Account, to the extent the loss amounts were
invested for the benefit of a Borrower under the terms of a Serviced Mortgage
Loan or applicable law).
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment of funds on deposit in any Investment
Account, and if the party hereunder that maintains such Investment Account
(whether it is a Master Servicer, a Special Servicer or the Certificate
Administrator) is in default of its obligations under or contemplated by Section
3.06(b), the Trustee may (and, subject to Section 8.02, upon the request of (i)
Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class of Interest Only Certificates or Principal Balance
Certificates, (ii) the Controlling Class Representative or (iii) alternatively,
but only if the Permitted Investment involves funds on deposit in a Companion
Note Custodial Account or a Subordinate Note Custodial Account, the related
Serviced Non-Pooled Mortgage Loan Noteholder (it being understood that, for
purposes of this clause (iii), Section 8.02 shall be construed as if references
therein to one or more "Certificateholders" were instead references to such
Serviced Non-Pooled Mortgage Loan Noteholder), the Trustee shall) take such
action as may be appropriate to enforce such payment or performance,
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including the institution and prosecution of appropriate legal proceedings. Any
costs incurred by the Trustee in taking any such action shall be reimbursed to
it by the party hereunder that maintains such Investment Account (whether it is
a Master Servicer, a Special Servicer or the Certificate Administrator). This
provision is in no way intended to limit any actions that a Master Servicer, a
Special Servicer or the Certificate Administrator may take in this regard at its
own expense.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount, the Master Servicer Remittance Amounts and
the monthly amounts payable to the respective Serviced Non-Pooled Mortgage Loan
Noteholders, the amounts so invested shall be deemed to remain on deposit in
such Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) In the case of each Performing Serviced Mortgage Loan, the
applicable Master Servicer shall use reasonable efforts consistent with the
Servicing Standard to cause the related Borrower to maintain (including
identifying the extent to which a Borrower is maintaining insurance coverage
and, if such Borrower does not so maintain, such Master Servicer will itself
cause to be maintained with Qualified Insurers having the Required Claims-Paying
Ratings) for the related Mortgaged Property (x) a fire and casualty extended
coverage insurance policy, which does not provide for reduction due to
depreciation, in an amount that is at least equal to the lesser of (i) the full
replacement cost of improvements securing such Mortgage Loan or (ii) the
outstanding principal balance of such Mortgage Loan, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause and (y)
all other insurance coverage (including but not limited to coverage for damage
resulting from acts of terrorism) as is required or that the lender is entitled
to reasonably require, subject to applicable law, under the related Mortgage
Loan Documents; provided that all of the following conditions and/or limitations
shall apply:
(A) the applicable Master Servicer shall not be required to
maintain any earthquake or environmental insurance policy on any Mortgaged
Property securing a Performing Serviced Mortgage Loan unless such
insurance policy was in effect at the time of the origination of such
Mortgage Loan pursuant to the terms of the related Mortgage Loan Documents
and is available at commercially reasonable rates (and if the applicable
Master Servicer does not cause the Borrower to maintain or does not itself
maintain such earthquake or environmental insurance policy on any
Mortgaged Property, the applicable Special Servicer shall have the right,
but not the duty, to obtain, at the Trust's expense, earthquake or
environmental insurance on any Mortgaged Property securing a Specially
Serviced Mortgage Loan or on an Administered REO Property so long as such
insurance is available at commercially reasonable rates);
(B) if and to the extent that any Performing Serviced
Mortgage Loan grants the lender thereunder any discretion (by way of
consent, approval or otherwise) as to the insurance provider from whom the
related Borrower is to obtain the requisite insurance coverage, the
applicable Master Servicer shall (to the extent consistent with the
Servicing Standard) use efforts consistent with the Servicing Standard to
cause the related Borrower to obtain the requisite insurance coverage from
Qualified Insurers that, in each case, have the Required Claims-Paying
Ratings at the time such insurance coverage is obtained;
(C) the applicable Master Servicer shall have no obligation
beyond using its reasonable efforts consistent with the Servicing Standard
to cause the Borrower under any Performing Serviced Mortgage Loan to
maintain the insurance required to be maintained or that the lender is
entitled to reasonably require, subject to applicable law, under the
related Mortgage Loan Documents;
(D) in no event shall the applicable Master Servicer be
required to cause the Borrower under any Performing Serviced Mortgage Loan
to maintain, or itself obtain, insurance coverage that the applicable
Master Servicer has determined is either (i) not available at any rate or
(ii) not available at commercially reasonable rates and the related
hazards are not at the time commonly insured against at the then-available
rates
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for properties similar to the related Mortgaged Property and located in or
around the region in which the related Mortgaged Property is located (in
each case, as determined by the applicable Master Servicer, which shall be
entitled to rely, at its own expense, on insurance consultants in making
such determination) (and provided that any such determinations by the
applicable Master Servicer must be made not less frequently (but need not
be made more frequently) than annually but in any event shall be made at
the approximate date on which the applicable Master Servicer receives
notice of the renewal, replacement or cancellation of coverage);
(E) the reasonable efforts of the applicable Master Servicer
to cause the Borrower under any Performing Serviced Mortgage Loan to
maintain insurance shall be conducted in a manner that takes into account
the insurance that would then be available to the applicable Master
Servicer on a force-placed basis; and
(F) to the extent the applicable Master Servicer itself is
required to maintain insurance that the Borrower under any Performing
Serviced Mortgage Loan does not maintain, the applicable Master Servicer
shall not be required to maintain insurance other than what is available
to such Master Servicer on a force-placed basis (and this will not be
construed to modify the other limits set forth in clause (D) above).
Notwithstanding the limitation set forth in clause (D) above, the
applicable Master Servicer shall, prior to availing itself of any limitation
described in that clause with respect to any Performing Serviced Mortgage Loan
that has a Stated Principal Balance in excess of $2,500,000, obtain the approval
or disapproval of the applicable Special Servicer (and, in connection therewith,
the applicable Special Servicer shall be required to comply with any applicable
provisions of Sections 3.24, 3.27, 3.28, 3.29 and/or 3.30, if and as
applicable). The applicable Master Servicer shall be entitled to rely on the
determination of the Special Servicer made in connection with such approval or
disapproval. The applicable Special Servicer shall decide whether to withhold or
grant such approval in accordance with the Servicing Standard. If any such
approval has not been expressly denied within seven Business Days (or in the
case of the Serviced Mortgage Loan Groups, such longer period of time, if any,
that is provided in or pursuant to Sections 3.24, 3.27, 3.28, 3.29 and/or 3.30,
if and as applicable) of the applicable Special Servicer's receipt from the
applicable Master Servicer of such Master Servicer's determination and analysis
and all information reasonably requested thereby and reasonably available to the
applicable Master Servicer in order to make an informed decision, such approval
shall be deemed to have been granted.
The applicable Master Servicer shall notify the applicable Special
Servicer, the Trustee, the Controlling Class Representative and (if a Serviced
Mortgage Loan Group is involved) the related Serviced Non-Pooled Mortgage Loan
Noteholder, if the applicable Master Servicer determines that the Borrower under
any Performing Serviced Mortgage Loan has failed to maintain insurance required
under (or that such Master Servicer has required pursuant to a provision that
entitles the lender to reasonably require insurance under) the related Mortgage
Loan Documents and such failure materially and adversely affects such Mortgage
Loan and/or the interest of the Trust in the related Mortgaged Property or if
the Borrower under any Performing Serviced Mortgage Loan has notified the
applicable Master Servicer in writing that the Borrower does not intend to
maintain such insurance and the applicable Master Servicer has determined that
such failure materially and adversely affects such Mortgage Loan and/or the
interest of the Trust in the related Mortgaged Property.
Subject to Sections 3.17(b), 3.24, 3.27, 3.28, 3.29 and/or 3.30, as
applicable, with respect to each Specially Serviced Mortgage Loan and
Administered REO Property, the applicable Special Servicer shall use reasonable
efforts, consistent with the Servicing Standard, to maintain (and, in the case
of Specially Serviced Mortgage Loans, the applicable Special Servicer shall (x)
direct the applicable Master Servicer to make a Servicing Advance for the costs
associated with coverage that such Special Servicer determines to maintain, in
which case the applicable Master Servicer shall make such Servicing Advance
(subject to Section 3.19(b)), or (y) direct the applicable Master Servicer to
cause such coverage to be maintained under the applicable Master Servicer's
force-place insurance policy, in which case the applicable Master Servicer shall
so cause such coverage to be maintained thereunder to the extent that the
identified coverage is available under the applicable Master Servicer's existing
force-place policy) with Qualified Insurers having the Required Claims-Paying
Ratings (a) a fire and casualty extended coverage insurance policy, which does
not provide for reduction due to depreciation, in an amount that is at least
equal to the lesser of (i) the full replacement cost of
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improvements securing such Mortgage Loan or at such REO Property or (ii) the
outstanding principal balance of such Mortgage Loan or the related REO Mortgage
Loan, but, in any event, in an amount sufficient to avoid the application of any
co-insurance clause, (b) a comprehensive general liability insurance policy with
coverage comparable to that which would be required under prudent lending
requirements and in an amount not less than $1 million per occurrence and (c) to
the extent consistent with the Servicing Standard, a business interruption or
rental loss insurance covering revenues or rents for a period of at least twelve
(12) months or, with respect to Mortgage Loans with initial principal balances
greater than $35 million, at least eighteen (18) months, in each case if so
required pursuant to the related Mortgage Loan Documents; provided, however,
that neither the applicable Master Servicer nor the applicable Special Servicer
shall be required in any event to maintain or obtain the insurance coverage
otherwise described by this paragraph beyond what is available at commercially
reasonable rates and consistent with the Servicing Standard.
All such insurance policies maintained as described above shall
contain (if they insure against loss to property) a "standard" mortgagee clause,
with loss payable to the applicable Master Servicer on behalf of the Trustee, in
the case of insurance maintained in respect of a Serviced Mortgage Loan, or
shall name the Trustee as the insured, with loss payable to the applicable
Special Servicer on behalf of the Trustee, in the case of insurance maintained
in respect of an Administered REO Property. Any amounts collected by a Master
Servicer or a Special Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Borrower, in each case in
accordance with the Servicing Standard) shall be deposited in the Collection
Account of the applicable Master Servicer, a related Companion Note Custodial
Account and/or a related Subordinate Note Custodial Account, as appropriate in
accordance with Section 3.04, subject to withdrawal pursuant to Section 3.05, in
the case of amounts received in respect of a Serviced Mortgage Loan, or in the
REO Account of the applicable Special Servicer, subject to withdrawal pursuant
to Section 3.16(c), in the case of amounts received in respect of an
Administered REO Property. Any cost incurred by a Master Servicer or Special
Servicer in maintaining any such insurance shall not, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
unpaid principal balance or Stated Principal Balance of the related Serviced
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit;
provided, however, that this sentence shall not limit the rights of a Master
Servicer or Special Servicer on behalf of the Trust (and, if applicable, the
Serviced Non-Pooled Mortgage Loan Noteholders) to enforce any obligations of the
related Borrower under such Mortgage Loan. Costs to a Master Servicer or the
Special Servicer of maintaining insurance policies pursuant to this Section 3.07
shall (subject to Section 3.11(h) and Section 3.19(b)) be paid by, and
reimbursable to, such Master Servicer or Special Servicer, as the case may be,
as a Servicing Advance.
(b) If (i) a 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 or Administered REO Properties, as applicable, as to which it is
the applicable Master Servicer or the applicable Special Servicer, as the case
may be, then, to the extent such policy (A) is obtained from a Qualified Insurer
having the Required Claims-Paying Ratings, and (B) provides protection
equivalent to the individual policies otherwise required herein and in the
Mortgage Loan Documents or (ii) a Master Servicer or Special Servicer has
long-term unsecured debt obligations that are rated not lower than "A" by S&P
and "A" by Fitch and DBRS (or if not rated by DBRS, the ratings listed above for
S&P and Fitch or the equivalent ratings by at least two nationally recognized
statistical rating organizations (which may include S&P, Fitch, AM Best and/or
Xxxxx'x)) and such Master Servicer or such Special Servicer, as the case may be,
self-insures for its obligation to maintain, and deposits into its Collection
Account (any such deposit to be deemed to constitute "Insurance Proceeds") the
amount of any loss to the Trust that would have been covered by, the individual
policies otherwise required, such Master Servicer or such Special Servicer, as
the case may be, shall conclusively be deemed to have satisfied its obligation
to cause hazard insurance to be maintained on the related Mortgaged Properties
or REO Properties, as applicable. Such a blanket or master force-placed policy
may contain a deductible clause (not in excess of a customary amount), in which
case the applicable Master Servicer or the applicable Special Servicer, as the
case may be, whichever maintains such policy, shall, if there shall not have
been maintained on any Mortgaged Property securing a Serviced Mortgage Loan or
any Administered REO Property thereunder a hazard insurance policy complying
with the requirements of Section 3.07(a), and there shall have been one or more
losses that would have been covered by such an individual policy, promptly
deposit into the applicable Collection Account (or, to the
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extent the loss affects a related Serviced Non-Pooled Mortgage Loan Noteholder,
in the related Companion Note Custodial Account or Subordinate Note Custodial
Account, as applicable) maintained by the applicable Master Servicer, from its
own funds without any right of reimbursement from the Trust, the amount not
otherwise payable under the blanket or master force-placed policy in connection
with such loss or losses because of such deductible clause to the extent that
any such deductible exceeds the deductible limitation that pertained to the
related 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 Servicers and the Special
Servicers shall each prepare and present, on behalf of itself, the Trustee and
Certificateholders and, if applicable, the Serviced Non-Pooled Mortgage Loan
Noteholders, claims under any such blanket or master force-placed policy
maintained by it in a timely fashion in accordance with the terms of such
policy.
(c) With respect to each Performing Serviced Mortgage Loan that is
subject to an Environmental Insurance Policy, if the applicable Master Servicer
(or the applicable Primary Servicer serving on its behalf) has actual knowledge
of any event (an "Insured Environmental Event") giving rise to a claim under an
Environmental Insurance Policy, such Master Servicer shall notify the applicable
Special Servicer to such effect and such Master Servicer shall take reasonable
actions as are in accordance with the Servicing Standard and the terms and
conditions of such Environmental Insurance Policy to make a claim thereunder and
achieve the payment of all amounts to which the Trust is entitled thereunder.
With respect to each Specially Serviced Mortgage Loan and Administered REO
Property that is subject to an Environmental Insurance Policy, if the applicable
Special Servicer has actual knowledge of any event giving rise to a claim under
an Environmental Insurance Policy, such Special Servicer shall take reasonable
actions as are in accordance with the Servicing Standard and the terms and
conditions of such Environmental Insurance Policy to make a claim thereunder and
achieve the payment of all amounts to which the Trust is entitled thereunder.
Any legal fees or other out-of-pocket costs incurred in accordance with the
Servicing Standard in connection with any claim under an Environmental Insurance
Policy described above (whether by the applicable Master Servicer or the
applicable Special Servicer) shall be (subject to Section 3.11(h) and Section
3.19(b)) paid by, and reimbursable to, such Master Servicer or Special Servicer,
as the case may be, as a Servicing Advance.
(d) The Master Servicers and the Special Servicers shall each at
all times during the term of this Agreement (or, in the case of a Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans and/or Administered REO Properties for which it is the
applicable Special Servicer exist as part of the Trust Fund) keep in force with
a Qualified Insurer having the Required Claims-Paying Ratings, a fidelity bond
in such form and amount as are consistent with the Servicing Standard. A Master
Servicer or 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 such
Master Servicer or such Special Servicer, as the case may be. Such fidelity bond
shall provide that it may not be canceled without ten days' prior written notice
to the Trustee. So long as the long-term unsecured debt obligations of a Master
Servicer or Special Servicer are rated not lower than "A" by S&P, "A" by Fitch
and "A" by DBRS (or, if not rated by DBRS, an equivalent rating (such as those
listed above for S&P and Fitch) by at least two nationally recognized
statistical rating organizations (which may include S&P, Fitch, AM Best and/or
Xxxxx'x)), such Master Servicer or Special Servicer may self-insure with respect
to the fidelity bond coverage required as described above, in which case it
shall not be required to maintain an insurance policy with respect to such
coverage.
The Master Servicers and the Special Servicers shall each at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans and/or Administered REO Properties exist as part of the
Trust Fund) also keep in force with a Qualified Insurer having the Required
Claims-Paying Ratings, 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 are consistent with the Servicing Standard.
A Master Servicer or 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
such Master Servicer or such Special Servicer, as the case may be. Any such
errors and omissions policy shall provide that it may not be canceled without
ten
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days' prior written notice to the Trustee. So long as the long-term unsecured
debt obligations of a Master Servicer or a Special Servicer are rated not lower
than "A" by S&P, "A" by Fitch and "A" by DBRS (or, if not rated by DBRS, an
equivalent rating (such as those listed above for S&P and Fitch) by at least two
nationally recognized statistical rating organizations (which may include S&P,
Fitch, AM Best and/or Xxxxx'x)), such Master Servicer or Special Servicer may
self-insure with respect to the errors and omissions coverage required as
described above, in which case it shall not be required to maintain an insurance
policy with respect to such coverage.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) If the provisions of any Serviced Mortgage Loan expressly
permits the assignment of the related Mortgaged Property to, and assumption of
such Mortgage Loan by, another Person upon the satisfaction of specified
conditions, prohibits such an assignment or assumption except upon the
satisfaction of specified conditions or fully prohibits such an assignment and
assumption, and the related Borrower requests approval for such an assignment
and assumption or enters into a transfer of the related Mortgaged Property in
violation of the related Mortgage Loan Documents, or if the provisions of any
Mortgage Loan expressly permits the further encumbrance of the related Mortgaged
Property upon the satisfaction of specified conditions, prohibits such a further
encumbrance except upon the satisfaction of specified conditions or fully
prohibits such a further encumbrance, and the related Borrower requests approval
for such a further encumbrance or enters into a further encumbrance in violation
of the related Mortgage Loan Documents, the applicable Master Servicer (with
respect to a Performing Mortgage Loan) or the applicable Special Servicer (with
respect to a Specially Serviced Mortgage Loan) shall obtain the relevant
information and review and make a determination to either (i) disapprove such
request for approval of an assignment and assumption or further encumbrance (in
the case of a Borrower request for approval thereof) and not waive any violation
of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in
the best economic interest of the Trust and, if applicable, any affected
Serviced Non-Pooled Mortgage Loan Noteholder(s) (as a collective whole), approve
the request or waive the effect of the due-on-sale or due-on-encumbrance clause;
provided, however, that all of the following conditions and/or restrictions
shall apply:
(A) the applicable Master Servicer shall not enter into
such a waiver or approval for any Performing Serviced Mortgage Loan that
is a Pooled Mortgage Loan, unless such Master Servicer has obtained the
consent of the applicable Special Servicer (it being understood and agreed
that (1) the applicable Master Servicer shall promptly provide the
applicable Special Servicer (and, if a Serviced Mortgage Loan Group is
involved, to the related Serviced Mortgage Loan Group Controlling Party)
with notice of any Borrower request for such assignment or assumption, the
applicable Master Servicer's recommendations and analysis, and with all
information reasonably available to the applicable Master Servicer that
the applicable Special Servicer may reasonably request in order to
withhold or grant any such consent, (2) the applicable Special Servicer
shall decide whether to withhold or grant such consent in accordance with
the Servicing Standard (and subject to Sections 3.24, 3.27, 3.28, 3.29
and/or 3.30, if and as applicable), (3) except with respect to any
Nationwide Pooled Mortgage Loan, PCFII Pooled Mortgage Loan, if any such
consent has not been expressly denied within seven Business Days of the
applicable Special Servicer's receipt from the applicable Master Servicer
of such Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the applicable
Master Servicer in order to make an informed decision, such consent shall
be deemed to have been granted, and (4) solely with respect to any PCFII
Pooled Mortgage Loan or any Nationwide Pooled Mortgage Loan, any such
consent shall be deemed to have been granted if such consent has not been
expressly denied either (x) within ten Business Days of the applicable
Special Servicer's receipt of the applicable Master Servicer's
recommendations and analysis, if the applicable Special Servicer has not
requested additional information as described above on or before the date
that is four Business Days following the applicable Special Servicer's
initial receipt of the applicable Master Servicer's recommendations and
analysis, or (y) within six Business Days following the applicable Special
Servicer's receipt of the additional information requested by the
applicable Special Servicer as described above, if the applicable Special
Servicer has requested such additional information on or before the date
that is four Business Days following the applicable Special Servicer's
initial receipt of the applicable Master Servicer's recommendations and
analysis);
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(B) (1) if approval of an assignment and assumption or
waiver of a due-on-sale provision is involved and the affected Serviced
Mortgage Loan is a Pooled Mortgage Loan that (together with all other
Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized
Group as such Pooled Mortgage Loan or have the same Borrower as such
Pooled Mortgage Loan or have Borrowers that are known to be affiliated
with the Borrower under such Pooled Mortgage Loan) is one of the ten
largest Pooled Mortgage Loans then in the Trust or has a Cut-off Date
Principal Balance in excess of $20,000,000, then, subject to the related
Mortgage Loan Documents and applicable law, neither the applicable Master
Servicer (with respect to a Serviced Pooled Mortgage Loan other than a
Specially Serviced Pooled Mortgage Loan) nor the applicable Special
Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall
enter into such approval or waiver unless and until it has received
written confirmation from each Rating Agency that such action would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates and (2) if approval of an assignment and assumption or waiver
of a due-on-sale provision is involved and the affected Serviced Mortgage
Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to
the related Mortgage Loan Documents and applicable law, neither the
applicable Master Servicer (if such Serviced Mortgage Loan is not a
Specially Serviced Pooled Mortgage Loan) nor the applicable Special
Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled
Mortgage Loan) shall enter into such approval or waiver unless and until
it has received written confirmation from each applicable Rating Agency
for the related Non-Pooled Pari Passu Companion Loan Securities that such
action would not result in an Adverse Rating Event with respect to any
class of such Non-Pooled Pari Passu Companion Loan Securities rated by
such Rating Agency;
(C) (1) if approval of a further encumbrance or waiver of a
due-on-encumbrance provision is involved, then, subject to the related
Mortgage Loan Documents and applicable law, neither the applicable Master
Servicer (with respect to a Performing Serviced Mortgage Loan) nor the
applicable Special Servicer (with respect to a Specially Serviced Mortgage
Loan) shall enter into such approval or waiver unless and until it has
received written confirmation that such action would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates from
each Rating Agency, with respect to any Serviced Pooled Mortgage Loan that
(a) represents 2% or more of the then aggregate principal balance of all
of the Pooled Mortgage Loans then in the Trust Fund, (b) is one of the ten
largest Pooled Mortgage Loans then in the Trust Fund by principal balance,
(c) has an aggregate loan-to-value ratio (including existing and proposed
additional debt) that is equal to or greater than 85% or (d) has an
aggregate debt service coverage ratio (including the debt service on the
existing and proposed additional debt) that is less than 1.2x and (2) if
approval of a further encumbrance or waiver of a due-on-encumbrance
provision is involved and the affected Serviced Mortgage Loan is a
Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the
related Mortgage Loan Documents and applicable law, neither the applicable
Master Servicer (if such Serviced Mortgage Loan is not a Specially
Serviced Pooled Mortgage Loan) nor the applicable Special Servicer (if
such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan)
shall enter into such approval or waiver unless and until it has received
written confirmation from each applicable Rating Agency for the related
Non-Pooled Pari Passu Companion Loan Securities that such action would not
result in an Adverse Rating Event with respect to any class of such
Non-Pooled Pari Passu Companion Loan Securities rated by such Rating
Agency;
(D) if approval of an assignment and assumption or waiver of
a due-on-sale provision is involved, then, subject to the related Mortgage
Loan Documents and applicable law, neither the applicable Master Servicer
(with respect to a Performing Serviced Mortgage Loan) nor the applicable
Special Servicer (with respect to a Specially Serviced Mortgage Loan)
shall enter into such approval or waiver with respect to any Mortgaged
Property which secures a Cross-Collateralized Group unless (i) all of the
Mortgaged Properties securing such Cross-Collateralized Group are
transferred simultaneously by the respective Borrower(s) or (ii) either
(x) in the case of a Master Servicer, it has obtained the consent of the
applicable Special Servicer (pursuant to the approval procedures described
in clause (A) above) or (y) in the case of a Special Servicer, it has
obtained the consent of the Controlling Class Representative and/or the
related Serviced Mortgage Loan Group Controlling Party, if and to the
extent required under Sections 3.24, 3.27, 3.28, 3.29 and/or 3.30, as
applicable);
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(E) subject to the related Mortgage Loan Documents and
applicable law, neither the applicable Master Servicer (with respect to a
Performing Serviced Mortgage Loan) nor the applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall enter into such
approval or waiver unless all associated costs and expenses (including the
costs of any confirmation(s) of the absence of an Adverse Rating Event)
are covered without any expense to the Trust or (in the case of a Serviced
Mortgage Loan Group) any expense to any related Serviced Non-Pooled
Mortgage Loan Noteholder(s) (it being understood and agreed that, except
as expressly provided herein, neither the applicable Master Servicer nor
the applicable Special Servicer shall be obligated to cover or assume any
such costs or expenses);
(F) neither the applicable Master Servicer (with respect to
a Performing Serviced Mortgage Loan) nor the applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall, in connection
with any such approval or waiver, consent or agree to any modification,
waiver or amendment of any term or provision of such Serviced Mortgage
Loan that would result in an Adverse REMIC Event with respect to any REMIC
Pool or any Adverse Grantor Trust Event with respect to any Grantor Trust
Pool; and
(G) the applicable Special Servicer shall not consent to a
Master Servicer's recommendation described in clause (A) above, or itself
enter into such an approval or waiver, unless the applicable Special
Servicer has complied with Sections 3.24, 3.27, 3.28, 3.29 and/or 3.30, as
applicable.
Notwithstanding the foregoing, in no event will the applicable
Master Servicer's approval of an assignment and assumption or further
encumbrance be conditioned on the approval or absence of objection from the
applicable Special Servicer if (a) the transaction is permitted under the
related Mortgage Loan Documents and (b) the conditions to the transaction that
are set forth in the related Mortgage Loan Documents do not include the approval
of the lender or the exercise of lender discretion (other than confirming the
satisfaction of the other conditions to the transaction set forth in the related
Mortgage Loan Documents that do not include any other approval or exercise).
(b) In connection with any permitted assumption of any Serviced
Mortgage Loan or waiver of a "due-on-sale" or "due-on-encumbrance" clause
thereunder, the applicable Master Servicer (in the case of a Performing Serviced
Mortgage Loan) or the applicable Special Servicer (in the case of a Specially
Serviced Mortgage Loan) shall prepare all documents necessary and appropriate
for such purposes and shall coordinate with the related Borrower for the due
execution and delivery of such documents.
(c) The applicable Master Servicer shall have the right to consent
to any transfers of an interest in the Borrower under a Performing Serviced
Mortgage Loan, to the extent such transfer is allowed under the terms of the
related Mortgage Loan Documents (without the exercise of any lender approval or
discretion other than confirming the satisfaction of the other conditions to the
transfer set forth in the related Mortgage Loan Documents that do not include
any other approval or exercise of discretion), including any consent to transfer
to any subsidiary or affiliate of such Borrower or to a person acquiring less
than a majority interest in such Borrower; provided, however, that, subject to
the terms of the related Mortgage Loan Documents and applicable law, if (i) the
affected Serviced Mortgage Loan is a Pooled Mortgage Loan that, together with
all other Pooled Mortgage Loans, if any, that are in the same
Cross-Collateralized Group as such Pooled Mortgage Loan or have the same
Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be
affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated
Principal Balance that equals or exceeds 5% of the then aggregate Stated
Principal Balance of the Mortgage Pool or is one of the then current top ten
Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool or has
a Cut-off Date Principal Balance in excess of $20,000,000, and (ii) the transfer
is of an interest in the Borrower greater than 49%, then the applicable Master
Servicer shall not consent to such transfer unless and until it has received
written confirmation from each Rating Agency that such action would not result
in an Adverse Rating Event with respect to any Class of Rated Certificates (the
costs of which are to be payable by the related Borrower to the extent provided
for in the related Mortgage Loan Documents, which provisions shall not be waived
by the applicable Master Servicer, and, if not paid, such costs shall be paid by
and reimbursed to the applicable Master Servicer as an Additional Trust Fund
Expense); provided, further, however, that, subject to the terms of the related
Mortgage Loan Documents and applicable law, if (i) the matter involves a
Serviced
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Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari Passu
Companion Loans and (ii) the transfer is of an interest in the Borrower greater
than 49%, then the applicable Master Servicer shall not consent to such transfer
unless and until it has received written confirmation from each Rating Agency
for the Rated Certificates that such action would not result in an Adverse
Rating Event with respect to any Class of Rated Certificates rated by such
Rating Agency and also a written confirmation from each applicable Rating Agency
for the related Non-Pooled Pari Passu Companion Loan Securities that such action
would not result in an Adverse Rating Event with respect to any class of such
Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency (the
costs of which are to be payable by the related Borrower to the extent provided
for in the related Mortgage Loan Documents, which provisions shall not be waived
by the applicable Master Servicer, and, if not paid, such costs shall be paid by
and reimbursed to the applicable Master Servicer as an Additional Trust Fund
Expense). The applicable Master Servicer shall be entitled to collect and
receive from Borrowers any customary fees in connection with such transfers of
interest as Additional Master Servicing Compensation.
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage Loans.
(a) The applicable Special Servicer shall, subject to Sections
3.09(b), 3.09(c), 3.09(d), 3.24, 3.27, 3.28, 3.29 and/or 3.30, as applicable,
exercise reasonable efforts, consistent with the Servicing Standard, to
foreclose upon or otherwise comparably convert the ownership of the real
property and other collateral securing any Serviced Mortgage Loan that comes
into and continues in default and as to which no satisfactory arrangements can
be made for collection of delinquent payments, including pursuant to Section
3.20; provided that neither Master Servicer shall, with respect to any Serviced
Mortgage Loan that is an ARD Mortgage Loan after its Anticipated Repayment Date,
take any enforcement action with respect to the payment of Post-ARD Additional
Interest (other than the making of requests for its collection), and the
applicable Special Servicer may take such enforcement action only if (i) the
taking of an enforcement action with respect to the payment of other amounts due
under such Mortgage Loan is, in the reasonable judgment of the applicable
Special Servicer, and without regard to such Post-ARD Additional Interest, also
necessary, appropriate and consistent with the Servicing Standard or (ii) all
other amounts due under such Mortgage Loan have been paid, the payment of such
Post-ARD Additional Interest has not been forgiven in accordance with Section
3.20 and, in the reasonable judgment of the applicable Special Servicer, the
Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Advance Interest. In connection with the
foregoing, in the event of a default under any Serviced Mortgage Loan or
Cross-Collateralized Group that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule", then
the applicable Special Servicer shall consult Independent counsel regarding the
order and manner in which the applicable Special Servicer should foreclose upon
or comparably proceed against such properties. The applicable Special Servicer
may direct the applicable Master Servicer to advance, as contemplated by Section
3.19(b), all costs and expenses (including attorneys fees and litigation costs
and expenses) to be incurred on behalf of the Trust in any such proceedings or
such consultation, subject to the applicable Master Servicer being entitled to
reimbursement for any such advance as a Servicing Advance as provided in Section
3.05(a), and further subject to the applicable Special Servicer's being entitled
to pay out of the related Liquidation Proceeds, Insurance Proceeds and/or
Condemnation Proceeds any Liquidation Expenses incurred in respect of any
Serviced Mortgage Loan, which Liquidation Expenses were outstanding at the time
such proceeds are received. Nothing contained in this Section 3.09 shall be
construed so as to require the applicable Special Servicer, on behalf of the
Trust, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by the applicable Special Servicer taking into account the factors
described in Section 3.18 and the results of any appraisal obtained pursuant to
the following sentence or otherwise, all such cash bids to be made in a manner
consistent with the Servicing Standard. If and when the applicable Master
Servicer or the applicable Special Servicer deems it necessary in accordance
with the Servicing Standard for purposes of establishing the fair market value
of any Mortgaged Property securing a defaulted Serviced Mortgage Loan, whether
for purposes of bidding at foreclosure or otherwise, such Master Servicer or
such Special Servicer (as the case may be) is authorized to have an Appraisal
completed with respect to such property (the cost of which appraisal shall be
covered by, and be reimbursable as, a Servicing Advance).
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Neither Master Servicer shall foreclose upon or otherwise comparably
convert, including by taking title thereto, any real property or other
collateral securing a defaulted Serviced Mortgage Loan. The Special Servicers
and the Master Servicers shall not foreclose upon or otherwise comparably
convert, including by taking title thereto, any real property or other
collateral securing a Non-Trust-Serviced Pooled Mortgage Loan.
(b) Notwithstanding the foregoing provisions of this Section
3.09, no Mortgaged Property shall be acquired by the applicable Special Servicer
on behalf of the Trust (and, in the case of a Serviced Mortgage Loan Group, the
related Serviced Non-Pooled Mortgage Loan Noteholder(s)) under such
circumstances, in such manner or pursuant to such terms as would (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 REO
Property that is not treated as "foreclosure property" and that is held by any
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 to the imposition of any federal income or prohibited
transaction taxes under the Code. Subject to the foregoing, however, a Mortgaged
Property may be acquired through a single member limited liability company. In
addition, except as permitted under Section 3.17(a), the applicable Special
Servicer shall not acquire any personal property on behalf of the Trust (and, in
the case of a Serviced Mortgage Loan Group, the related Serviced Non-Pooled
Mortgage Loan Noteholder(s)) pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by the
applicable Special Servicer; or
(ii) the applicable Special Servicer shall have obtained an
Opinion of Counsel (the cost of which shall be covered by, and
reimbursable as, a Servicing Advance) to the effect that the holding of
such personal property as part of the Trust Fund will not result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor
Trust Event with respect to any Grantor Trust Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
the applicable Special Servicer shall not, on behalf of the Trust (and, in the
case of a Serviced Mortgage Loan Group, the related Serviced Non-Pooled Mortgage
Loan Noteholder(s)), have a receiver of rents appointed with respect to a
Mortgaged Property, or obtain title to a Mortgaged Property by foreclosure, deed
in lieu of foreclosure or otherwise, or take any other action with respect to
any Mortgaged Property, if, as a result of any such action, the Trustee, on
behalf of the Certificateholders, could, in the reasonable judgment of such
Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless:
(i) the applicable Special Servicer has previously
determined in accordance with the Servicing Standard, based on a Phase I
Environmental Assessment (and any additional environmental testing that
the applicable Special Servicer deems necessary and prudent) of such
Mortgaged Property conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments and performed during the
12-month period preceding any such acquisition of title or other action,
that such Mortgaged Property is in compliance with applicable
environmental laws and regulations and there are no circumstances or
conditions present at the Mortgaged Property relating to the use,
management or disposal of Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation could be
required under any applicable environmental laws and regulations; or
(ii) in the event that the determination described in
clause (c)(i) above cannot be made, the applicable Special Servicer has
previously determined in accordance with the Servicing Standard, on the
same basis as described in clause (c)(i) above, and taking into account
the coverage provided under the related Environmental Insurance Policy,
that it would maximize the recovery to the Certificateholders and, in the
case of a Mortgaged Property securing a Serviced Mortgage Loan Group, to
the related Serviced Non-Pooled Mortgage Loan Noteholder(s) (as a
collective whole) on a present value basis (the relevant discounting of
anticipated
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collections that will be distributable to Certificateholders and, in the
case of a Mortgaged Property securing a Serviced Mortgage Loan Group, to
the related Serviced Non-Pooled Mortgage Loan Noteholder(s), to be
performed at the related Net Mortgage Rate (or (x) in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, at the related Net
Mortgage Rate immediately prior to the Anticipated Repayment Date, or (y)
in the case of a Serviced Mortgage Loan Group, at the weighted average of
the Net Mortgage Rates for the related Mortgage Loans)) to acquire title
to or possession of the Mortgaged Property and to take such remedial,
corrective and/or other further actions as are necessary to bring the
Mortgaged Property into compliance with applicable environmental laws and
regulations and to appropriately address any of the circumstances and
conditions referred to in clause (c)(i) above.
Any such determination by a Special Servicer contemplated by clause
(i) or clause (ii) of the preceding paragraph shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee, the applicable Master
Servicer and the Controlling Class Representative (and, in the case of a
Mortgaged Property securing a Serviced Mortgage Loan Group, to the related
Serviced Non-Pooled Mortgage Loan Noteholder(s)), specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing, as well as the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding paragraph, shall be paid out of the applicable Collection
Account (subject to, if it relates to one or more Mortgage Loans in a Serviced
Mortgage Loan Group, the proviso at the end of the first paragraph (that is, the
initial paragraph that includes the enumerated clauses (i) through (xxii)) of
subsection (I) of Section 3.05(a)).
(d) If neither of the conditions set forth in clauses (i) and of
the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Serviced Mortgage Loan (or, if
applicable, a Serviced Mortgage Loan Group), the applicable Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust and, if applicable, the related
Serviced Non-Pooled Mortgage Loan Noteholder(s), release all or a portion of
such Mortgaged Property from the lien of the related Mortgage; provided that
both (i) if such Serviced Mortgage Loan has a then outstanding principal balance
greater than $1 million, then prior to the release of all or a portion of the
related Mortgaged Property from the lien of the related Mortgage, the applicable
Special Servicer shall have notified the Rating Agencies, the Controlling Class
Representative, the Trustee, the applicable Master Servicer and, if a Serviced
Mortgage Loan Group is involved, the related Serviced Mortgage Loan Group
Controlling Party if and to the extent required under the applicable Mortgage
Loan Group Intercreditor Agreement, in writing of its intention to so release
all or a portion of such Mortgaged Property and the basis for the determination
that such intention, in the applicable Special Servicer's good faith judgment,
was consistent with the Servicing Standard and (ii) if a Serviced Mortgage Loan
Group is involved, the holders of the related Non-Pooled Mortgage Loans or their
representatives shall have the rights, if any, in respect thereof that are
enumerated in the related Mortgage Loan Group Intercreditor Agreement.
(e) The applicable Special Servicer shall report to the the
applicable Master Servicer and the Controlling Class Representative (and, in the
case of a Mortgaged Property securing a Serviced Mortgage Loan Group, the
related Non-Pooled Mortgage Loan Noteholder(s)) monthly in writing as to any
actions taken by the applicable Special Servicer with respect to any Mortgaged
Property as to which neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied, in each case until
the earliest to occur of satisfaction of either of such conditions, release of
the lien of the related Mortgage on such Mortgaged Property and the related
Serviced Mortgage Loan's (or, in the case of a Serviced Mortgage Loan Group,
each of the related Serviced Mortgage Loan's) becoming a Corrected Mortgage
Loan.
(f) The applicable 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 subject Mortgage
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Loan permit such an action and shall, in accordance with the Servicing Standard,
seek such deficiency judgment if it deems advisable. The applicable Master
Servicer, at the direction of the applicable Special Servicer, shall make a
Servicing Advance for the costs incurred in pursuing any such deficiency action,
provided that such Master Servicer shall not be obligated in connection
therewith to advance any funds, which if so advanced would constitute a
Nonrecoverable Advance.
(g) Annually in each January, the applicable Master Servicer
shall, with the reasonable cooperation of the applicable Special Servicer,
prepare and file with the IRS on a timely basis the information returns with
respect to the reports of foreclosures and abandonments and reports relating to
any cancellation of indebtedness income with respect to any Serviced Mortgage
Loan for which it is the applicable Master Servicer, or Mortgaged Property
securing a Serviced Mortgage Loan for which it is the applicable Master
Servicer, required by Sections 6050H (as applicable), 6050J and 6050P of the
Code. Contemporaneously therewith, the applicable Master Servicer shall deliver
a copy of such information returns to the applicable Special Servicer and the
Trustee.
(h) As soon as the applicable Special Servicer (or, in the case of
a Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property, the
applicable Master Servicer) makes a Final Recovery Determination (such
determination to be made in consultation with the Controlling Class
Representative (or, in the case of a Serviced Mortgage Loan Group, the related
Serviced Mortgage Loan Group Controlling Party if and to the extent required
under the applicable Mortgage Loan Group Intercreditor Agreement) and the
related calculations to be subject to the approval of such Controlling Class
Representative (or, in the case of a Serviced Mortgage Loan Group, the related
Serviced Mortgage Loan Group Controlling Party)) with respect to any Mortgage
Loan or REO Property, it shall promptly notify the Certificate Administrator,
the Trustee, the Rating Agencies, the applicable Master Servicer (unless it is
the one making the determination) and the Controlling Class Representative (and,
in the case of a Serviced Mortgage Loan Group, the related Serviced Mortgage
Loan Group Controlling Party if and to the extent required under the applicable
Mortgage Loan Group Intercreditor Agreement). The applicable Special Servicer
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or any related REO
Property, the applicable Master Servicer) shall maintain accurate records,
prepared by a Servicing Officer, of each such Final Recovery Determination (if
any) made by it and the basis thereof. Each such Final Recovery Determination
(if any) shall be evidenced by an Officer's Certificate delivered to the
Certificate Administrator, the Trustee, the applicable Master Servicer (unless
it is the one making the determination), the Controlling Class Representative
and, if any Mortgage Loan in a Serviced Mortgage Loan Group is involved, the
related Serviced Mortgage Loan Group Controlling Party if and to the extent
required under the applicable Mortgage Loan Group Intercreditor Agreement, no
later than ten Business Days following such Final Recovery Determination. For
purposes of making a Final Recovery Determination with respect to a
Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property, the
applicable Master Servicer shall be entitled to rely on any comparable
determination made by the related Non-Trust Special Servicer.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Serviced Mortgage Loan, or the
receipt by the applicable Master Servicer of a notification that payment in full
shall be escrowed or made in a manner customary for such purposes, the
applicable Master Servicer shall promptly so notify the Trustee and request
delivery to it or its designee of the related Mortgage File and, in the case of
a Serviced Non-Pooled Mortgage Loan, the Master Servicer shall promptly so
notify the relevant Serviced Non-Pooled Mortgage Loan Noteholder, and request
delivery to it or its designee of the related Mortgage Note, as applicable (such
notice and request to be effected by delivering to the Trustee a Request for
Release in the form of Exhibit C-1 attached hereto, which Request for Release
shall be accompanied by the form of any release or discharge to be executed by
the Trustee and, in the case of the Serviced Non-Pooled Mortgage Loans, the
related Serviced Non-Pooled Mortgage Loan Noteholder, 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 such Master
Servicer's Collection Account and/or, in the case of the Serviced Non-Pooled
Mortgage Loans, in the related Companion Note Custodial Account or the related
Subordinate Note Custodial Account, as applicable, pursuant to Section 3.04 have
been or will be so deposited). Upon receipt of such Request for Release, the
Trustee and, in the case of the a Serviced Non-Pooled
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Mortgage Loan, if applicable, the related Serviced Non-Pooled Mortgage Loan
Noteholder, shall promptly release, or cause any related Custodian to release,
the related Mortgage File to the applicable Master Servicer or its designee and
shall deliver to the applicable Master Servicer or its designee such
accompanying release or discharge, duly executed. No expenses incurred in
connection with preparing or recording any instrument of satisfaction or deed of
reconveyance shall be chargeable to a Collection Account, any Companion Note
Custodial Account, any Subordinate Note Custodial Account or the Distribution
Account. If the Mortgage has been recorded in the name of MERS or its designee,
the applicable Master Servicer shall take all necessary action to reflect the
release of the Mortgage on the records of MERS.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the applicable Master Servicer or the
Special Servicer shall otherwise require any Mortgage File (or any portion
thereof) or, in the case of a Serviced Non-Pooled Mortgage Loan, the related
Mortgage Note, then, upon request of such Master Servicer and receipt from such
Master Servicer of a Request for Release in the form of Exhibit C-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 C-2 attached hereto, the Trustee or, in the case of a Serviced
Non-Pooled Mortgage Loan, the related Serviced Non-Pooled Mortgage Loan
Noteholder shall release, or the Trustee shall cause any related Custodian to
release, such Mortgage File (or portion thereof) or such Mortgage Note to such
Master Servicer or the Special Servicer, as the case may be, or its designee.
Upon return of such Mortgage File (or portion thereof) to the Person from whom
it was obtained as described above, or upon the Special Servicer's delivery to
such Person of an Officer's Certificate stating that (i) such Mortgage Loan was
liquidated and all amounts received or to be received in connection with such
liquidation that are required to be deposited into the Collection Account, the
related Companion Note Custodial Account(s) (if any) and/or the related
Subordinate Note Custodial Account(s) (if any) pursuant to Section 3.04 have
been or will be so deposited or (ii) such Mortgage Loan has become an REO
Mortgage Loan, a copy of the Request for Release shall be returned to the
applicable Master Servicer or the Special Servicer, as applicable, by the Person
to whom it was delivered as described above.
(c) Within five (5) Business Days of the Special Servicer's
request therefor (or, in case of an exigency, within such shorter period as is
reasonable under the circumstances), the Trustee and, in the case of a Serviced
Mortgage Loan Group, each Serviced Non-Pooled Mortgage Loan Noteholder shall
execute and deliver to the Special Servicer, in the form supplied to the Trustee
or the related Serviced Non-Pooled Mortgage Loan Noteholder, as applicable, by
the Special Servicer, any court pleadings, requests for trustee's sale or other
documents reasonably necessary, with respect to any Mortgage Loan, to the
foreclosure or trustee's sale in respect of the related Mortgaged Property or to
any legal action brought to obtain judgment against the related Borrower on the
Mortgage Note or Mortgage or to obtain a deficiency judgment, or to enforce any
other remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust, a Master Servicer, the Special Servicer or any related
Serviced Non-Pooled Mortgage Loan Noteholder; provided that the Trustee and each
such Serviced Non-Pooled Mortgage Loan Noteholder may alternatively execute and
deliver to the Special Servicer, in the form supplied to the Trustee and such
Serviced Non-Pooled Mortgage Loan Noteholder, as applicable, by the Special
Servicer, a limited power of attorney issued in favor of the Special Servicer,
subject to Section 3.01(b), and empowering the Special Servicer to execute and
deliver any or all of such pleadings or documents on behalf of the Trustee and
each Serviced Non-Pooled Mortgage Loan Noteholder (however, neither the Trustee
nor any such Serviced Non-Pooled Mortgage Loan Noteholder shall be liable for
any misuse of such power of attorney by the Special Servicer). Together with
such pleadings or documents (or such power of attorney), the Special Servicer
shall deliver to the Trustee or such Serviced Non-Pooled Mortgage Loan
Noteholder an Officer's Certificate requesting that such pleadings or documents
(or such power of attorney) be executed by the Trustee or such Serviced
Non-Pooled Mortgage Loan Noteholder and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee or such Serviced Non-Pooled Mortgage Loan Noteholder (or by the
Special Servicer on behalf of such Person) 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. Within five (5) Business Days
following receipt, the Trustee shall forward any documents it receives related
to the servicing of the Pooled Mortgage Loans (including but not limited to any
court pleadings and other documents related to legal action involving any
Mortgagor or Mortgaged Property) to the applicable Master Servicer or Special
Servicer, as the case may be. Upon delivery of such documents, the Trustee shall
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not be liable for any loss, claim or expense related to any failure by such
Master Servicer or Special Servicer to process such documentation in a timely
fashion. Any document delivered to a Master Servicer or Special Servicer shall
be deemed to have been duly delivered when delivered via overnight carrier to
the address of such party as set forth in Section 12.05.
(d) If from time to time, pursuant to the terms of a Mortgage
Loan Group Intercreditor Agreement and the related Non-Trust Servicing Agreement
related to a Non-Trust-Serviced Pooled Mortgage Loan, and as appropriate for
enforcing the terms of, or otherwise properly servicing, such Non-Trust-Serviced
Pooled Mortgage Loan, the related Non-Trust Master Servicer, the related
Non-Trust Special Servicer or other similar party requests delivery to it of the
original Mortgage Note for such Non-Trust-Serviced Pooled 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 a Non-Trust-Serviced Pooled Mortgage Loan in
accordance with the preceding sentence, the Trustee shall obtain such
documentation as is appropriate to evidence the holding by the related Non-Trust
Master Servicer, the related Non-Trust Special Servicer or such other similar
party, as the case may be, of such original Mortgage Note as custodian on behalf
of and for the benefit of the Trustee.
SECTION 3.11. Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the
Trustee Regarding Back-up Servicing Advances.
(a) As compensation for its activities hereunder, each Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan), and each
successor REO Mortgage Loan thereto, as to which it is the applicable Master
Servicer. As to each such Mortgage Loan and REO Mortgage Loan, for each calendar
month (commencing with December 2007) or any applicable portion thereof, the
Master Servicing Fee shall accrue at the related Master Servicing Fee Rate on
the Stated Principal Balance of such Mortgage Loan or such REO Mortgage Loan, as
the case may be, and shall be calculated on the same Interest Accrual Basis as
is applicable for such Mortgage Loan or REO Mortgage Loan, as the case may be,
and for the same number of days respecting which any related interest payment
due on such Mortgage Loan or deemed to be due on such REO Mortgage Loan is
computed under the terms of the related Mortgage Note (as such terms may be
changed or modified at any time following the Closing Date) and applicable law.
The Master Servicing Fee with respect to any Mortgage Loan or any REO Mortgage
Loan shall cease to accrue (but not as to any Replacement Pooled Mortgage Loan
with respect thereto) if a Liquidation Event occurs in respect thereof (unless,
in the case of a Serviced Mortgage Loan Group, the servicing and administration
of such Serviced Mortgage Loan Group is to continue under this Agreement
pursuant to Section 3.01(e)). Furthermore, in the case of any Serviced
Non-Pooled Mortgage Loan or any REO Mortgage Loan with respect thereto, the
Master Servicing Fee shall cease to accrue if a Liquidation Event occurs in
respect of the related Pooled Mortgage Loan (unless the servicing and
administration of the related Serviced Mortgage Loan Group is to continue under
this Agreement pursuant to Section 3.01(e)). Master Servicing Fees earned with
respect to any Mortgage Loan or any REO Mortgage Loan shall be payable monthly
from payments of interest on such Mortgage Loan or REO Revenues allocable as
interest on such REO Mortgage Loan, as the case may be. The applicable Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of
any Mortgage Loan or any REO Mortgage Loan out of the portion any related
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds allocable as
interest on such Mortgage Loan or REO Mortgage Loan, as the case may be. Master
Servicing Fees earned with respect to a Serviced Non-Pooled Pari Passu Companion
Loan (or any successor REO Mortgage Loan with respect thereto) shall be payable
out of the related Companion Note Custodial Account as provided in Section
3.05(f). Master Servicing Fees earned with respect to a Serviced Non-Pooled
Subordinate Loan (or any successor REO Mortgage Loan with respect thereto) or
any Non-Pooled Subordinate Loan (or any successor REO Mortgage Loan with respect
thereto) shall be payable out of the related Subordinate Note Custodial Account
as provided in Section 3.05(g). The Servicer Report Administrator shall be
entitled to the Servicer Report Administrator Fee (payable as provided in
Section 8.05(a)) in respect of all the Pooled Mortgage Loans and successor REO
Mortgage Loans thereto. Notwithstanding any contrary provision set forth above,
in no event shall a Master Servicing Fee be payable hereunder with respect to
any Mortgage Loan that is neither a Pooled
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Mortgage Loan nor a Serviced Mortgaged Loan. The applicable Master Servicer
shall pay, solely from the Master Servicing Fee to which the Master Servicer is
otherwise entitled, any Primary Servicing Fee to which the Primary Servicer for
the related Mortgage Loan is entitled (unless such Primary Servicing Fee has
been retained from collections by the Primary Servicer pursuant to the Primary
Servicing Agreement).
PAR and any successor holder of the Excess Servicing Fee Rights that
relate to the Serviced Mortgage Loans (and any successor REO Mortgage Loans with
respect to such Serviced Mortgage Loans) for which PAR is the applicable Master
Servicer shall be entitled, at any time, at its own expense, to transfer, sell,
pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in
part), and WFB and any successor holder of the Excess Servicing Fee Rights that
relate to the Serviced Mortgage Loans (and any successor REO Mortgage Loans with
respect to such Serviced Mortgage Loans) for which WFB is the applicable Master
Servicer shall be entitled, at any time, at its own expense, to transfer, sell,
pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in
part), in either case, to any Qualified Institutional Buyer or Institutional
Accredited Investor (other than a Plan), provided that no such transfer, sale,
pledge or other assignment shall be made unless (i) that transfer, sale, pledge
or other assignment is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws and
is otherwise made in accordance with the Securities Act and such state
securities laws, (ii) the prospective transferor shall have delivered to the
Depositor a certificate substantially in the form attached as Exhibit F-3A
hereto, and (iii) the prospective transferee shall have delivered to PAR or WFB,
as applicable, and the Depositor a certificate substantially in the form
attached as Exhibit F-3B hereto. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify an Excess Servicing
Fee Right under the Securities Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer, sale,
pledge or assignment of an Excess Servicing Fee Right without registration or
qualification. PAR, WFB and each holder of an Excess Servicing Fee Right
desiring to effect a transfer, sale, pledge or other assignment of such Excess
Servicing Fee Right shall, and each of PAR and WFB hereby agrees, and each such
holder of an Excess Servicing Fee Right by its acceptance of such Excess
Servicing Fee Right shall be deemed to have agreed, in connection with any
transfer of such Excess Servicing Fee Right effected by such Person, to
indemnify the Certificateholders, the Trust, the Depositor, the Underwriters,
the Certificate Administrator, the Trustee, the Master Servicers, the
Certificate Registrar and the Special Servicers against any liability that may
result if such transfer is not exempt from registration and/or qualification
under the Securities Act or other applicable federal and state securities laws
or is not made in accordance with such federal and state laws or in accordance
with the foregoing provisions of this paragraph. By its acceptance of an Excess
Servicing Fee Right, the holder thereof shall be deemed to have agreed not to
use or disclose such information in any manner that could result in a violation
of any provision of the Securities Act or other applicable securities laws or
that would require registration of such Excess Servicing Fee Right or any
Non-Registered Certificate pursuant to the Securities Act. From time to time
following any transfer, sale, pledge or assignment of an Excess Servicing Fee
Right, the Person then acting as the Master Servicer with respect to the related
Serviced Mortgage Loan or successor REO Mortgage Loan with respect thereto to
which the Excess Servicing Fee Right relates, shall pay, out of each amount paid
to such Master Servicer as Master Servicing Fees with respect to such Mortgage
Loan or REO Mortgage Loan, as the case may be, the related Excess Servicing Fees
to the holder of such Excess Servicing Fee Right within one Business Day
following the payment of such Master Servicing Fees to such Master Servicer, in
each case in accordance with payment instructions provided by such holder in
writing to such Master Servicer. The holder of an Excess Servicing Fee Right
shall not have any rights under this Agreement except as set forth in the
preceding sentences of this paragraph. None of the Certificate Administrator,
the other Master Servicer, the Certificate Registrar, the Depositor, the Special
Servicer, the Trustee or the Tax Administrator shall have any obligation
whatsoever regarding payment of the Excess Servicing Fee or the assignment or
transfer of the Excess Servicing Fee Right.
A Master Servicer's right to receive the Master Servicing Fees (and,
in the case of the Servicer Report Administrator, the Servicer Report
Administrator Fees) to which it is entitled may not be transferred in whole or
in part except in connection with the transfer of all of such Master Servicer's
responsibilities and obligations under this Agreement and except as otherwise
expressly provided herein, including as contemplated by the prior paragraph.
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(b) Each Master Servicer shall be entitled to receive the
following items as additional servicing compensation (the following items,
collectively, "Additional Master Servicing Compensation"):
(i) any and all Net Default Charges actually collected
with respect to any Serviced Pooled Mortgage Loan for which such Master
Servicer is the applicable Master Servicer or any successor REO Mortgage
Loan with respect thereto, to the extent that such Net Default Charges are
payable to such Master Servicer under Section 3.26 and any and all
application and processing fees for consents to approvals of assignments
and assumptions, further encumbrances or other lender approvals, to the
extent actually collected during the related Collection Period with
respect to Performing Serviced Mortgage Loans for which such Master
Servicer is the applicable Master Servicer;
(ii) (x) 50% of assumption fees, modification fees,
extension fees, consent fees, release fees, waiver fees, fees paid in
connection with defeasance and earn-out fees or other similar fees
(excluding Prepayment Premiums, Yield Maintenance Charges and application
and processing fees), in each case to the extent actually collected during
the related Collection Period with respect to Performing Serviced Mortgage
Loans for which such Master Servicer is the applicable Master Servicer and
paid in connection with a consent, approval or other action that the
applicable Master Servicer is not permitted to take in the absence of the
consent or approval (or deemed consent or approval) of the applicable
Special Servicer under the other provisions of this Agreement and (y) 100%
of assumption fees, modification fees, extension fees, consent fees,
release fees, waiver fees, fees paid in connection with defeasance and
earn-out fees or other similar fees (excluding Prepayment Premiums, Yield
Maintenance Charges and application and processing fees), in each case to
the extent actually collected during the related Collection Period with
respect to Performing Serviced Mortgage Loans for which such Master
Servicer is the applicable Master Servicer and paid in connection with a
consent, approval or other action that such Master Servicer is permitted
to take in the absence of the consent or approval (or deemed consent or
approval) of the applicable Special Servicer under the other provisions of
this Agreement;
(iii) any and all charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and
other loan processing fees actually paid by the Borrowers under Serviced
Mortgage Loans for which such Master Servicer is the applicable Master
Servicer;
(iv) any and all Prepayment Interest Excesses collected
with respect to the Pooled Mortgage Loans for which such Master Servicer
is the applicable Master Servicer; and
(v) interest or other income earned on deposits in the
Investment Accounts maintained by such Master Servicer, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to any such Investment Account for each Collection
Period and, further, in the case of a Servicing Account or Reserve
Account, only to the extent such interest or other income is not required
to be paid to any Borrower under applicable law or under the related
Mortgage).
To the extent that any of the amounts described in clauses (i)
through (iv) in the preceding paragraph are collected by a Special Servicer,
such Special Servicer shall promptly pay such amounts to the applicable Master
Servicer.
(c) As compensation for its activities hereunder, each Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Mortgage Loan for which it is the applicable
Special Servicer, and each REO Mortgage Loan thereto that relates to an
Administered REO Property for which it is the applicable Special Servicer. As to
each such Specially Serviced Mortgage Loan and REO Mortgage Loan, for any
particular calendar month or applicable portion thereof, the Special Servicing
Fee shall accrue at the Special Servicing Fee Rate on the Stated Principal
Balance of such Specially Serviced Mortgage Loan or such REO Mortgage Loan, as
the case may be, and shall be calculated on the same Interest Accrual Basis as
is applicable for such Specially Serviced Mortgage Loan or REO Mortgage Loan, as
the case may be, and for the same number of days respecting which any related
interest payment due on such Specially Serviced Mortgage Loan or deemed to be
due on such REO Mortgage Loan is computed
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under the terms of the related Mortgage Note (as such terms may be changed or
modified at any time following the Closing Date) and applicable law. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan that is a
Pooled Mortgage Loan or any successor REO Mortgage Loan thereto shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or, in the
case of such a Specially Serviced Mortgage Loan, as of the date it becomes a
Corrected Mortgage Loan. The Special Servicing Fee with respect to any Serviced
Non-Pooled Mortgage Loan or any successor REO Mortgage Loan with respect thereto
shall cease to accrue as of the date a Liquidation Event occurs in respect of
the related Pooled Mortgage Loan or REO Property included in the same Mortgage
Loan Group or, in the case of such a Specially Serviced Mortgage Loan, as of the
date it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing
Fees with respect to Pooled Mortgage Loans that are Specially Serviced Mortgage
Loans and REO Pooled Mortgage Loans shall be payable (pursuant to Section
3.05(a)) monthly first out of related Liquidation Proceeds, Insurance Proceeds
and/or Condemnation Proceeds, if any, and then out of general collections on the
Pooled Mortgage Loans and any REO Properties on deposit in the applicable
Collection Account and earned but unpaid Special Servicing Fees with respect to
any Serviced Non-Pooled Mortgage Loan or any successor REO Mortgage Loan with
respect thereto shall be payable in accordance with the related Mortgage Loan
Group Intercreditor Agreement and solely out of the proceeds of such Serviced
Non-Pooled Mortgage Loan; provided, however, that any Special Servicing Fees
earned with respect to a Pooled Mortgage Loan in a Serviced Mortgage Loan Group
that has a Serviced Non-Pooled Subordinate Loan will be payable out of
collections on or with respect to the related Serviced Non-Pooled Subordinate
Loan and/or the related Serviced Non-Pooled Subordinate Noteholder's share of
collections on any related REO Property prior to payment out of any collections
otherwise described above.
As further compensation for its activities hereunder, each Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Serviced Mortgage Loan that is a Corrected Mortgage Loan and for which such
Special Servicer is the applicable Special Servicer, unless the basis on which
such Serviced Mortgage Loan became a Corrected Mortgage Loan was the remediation
of a circumstance or condition relating to the related Pooled Mortgage Loan
Seller's obligation to repurchase such Mortgage Loan pursuant to the related
Pooled Mortgage Loan Purchase Agreement, as applicable, in which case, if such
Mortgage Loan is repurchased within the Initial Resolution Period (and, if
applicable any Resolution Extension Period as is permitted under Section 2.03)
no Workout Fee will be payable from or based upon the receipt of, any Purchase
Price paid by the related Pooled Mortgage Loan Seller in satisfaction of such
repurchase obligation. As to each such Corrected Mortgage Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each payment of interest (other than Post-ARD Additional Interest
and Default Interest) and principal received from the related Borrower on such
Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan and
any Workout Fees earned with respect to any Serviced Non-Pooled Mortgage Loan or
any successor REO Mortgage Loan with respect thereto shall be payable in
accordance with the related Mortgage Loan Group Intercreditor Agreement and
solely out of the proceeds of such Serviced Non-Pooled Mortgage Loan; provided,
however, that any Workout Fees earned with respect to a Pooled Mortgage Loan
(and, if such Pooled Mortgage Loan has a related Serviced Non-Pooled Pari Passu
Companion Loan, such Serviced Non-Pooled Pari Passu Companion Loan) in a
Serviced Mortgage Loan Group that has a Serviced Non-Pooled Subordinate Loan
will be payable out of any proceeds on or with respect to such Serviced
Non-Pooled Subordinate Loan and/or the related Serviced Non-Pooled Subordinate
Noteholder's share of proceeds on such related REO Property prior to any
proceeds on or with respect to the Pooled Mortgage Loan (and, if such Pooled
Mortgage Loan has a related Serviced Non-Pooled Pari Passu Companion Loan, such
Non-Pooled Pari Passu Companion Loan) and/or the Trust's (and, if such Pooled
Mortgage Loan has a related Serviced Non-Pooled Pari Passu Companion Loan, the
related Serviced Non-Pooled Mortgage Loan Noteholder's) share of proceeds on
such related REO Property as otherwise described above. 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 would become payable if and when such Serviced Mortgage Loan again
became a Corrected Mortgage Loan after having again become a Specially Serviced
Mortgage Loan. If a Special Servicer is terminated or resigns, such Special
Servicer shall retain the right (and the applicable successor Special Servicer
shall not have the right) to receive any and all Workout Fees payable in respect
of (i) any Serviced Mortgage Loans serviced by such Special Servicer that became
Corrected Mortgage Loans during the period that it acted as Special Servicer and
that were still Corrected Mortgage Loans at the time of such termination or
resignation and (ii) unless such Special Servicer was terminated for cause (in
which case only clause (i) above shall
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apply), any Serviced Mortgage Loans that constitute Specially Serviced Mortgage
Loans for which such Special Servicer has resolved the circumstances and/or
conditions causing any such Mortgage Loan to be a Specially Serviced Mortgage
Loan such that the related Borrower has made, as of the date of such termination
or resignation, at least one timely Monthly Payment required by the terms of the
workout and such Mortgage Loan otherwise meets the requirements of a Corrected
Mortgage Loan, with the Workout Fee with respect to such Mortgage Loan payable
only after such requirements have been satisfied; provided, however, that (A) in
either case no other event has occurred as of the time of such Special
Servicer's termination or resignation that would otherwise cause such Mortgage
Loan to again become a Specially Serviced Mortgage Loan and (B) in the case of
any Specially Serviced Mortgage Loan described in clause (ii) of this sentence,
such terminated Special Servicer shall immediately deliver the related Servicing
File to the applicable Master Servicer, and the applicable Master Servicer shall
(without further compensation) monitor that all conditions precedent to such
Mortgage Loan's becoming a Corrected Mortgage Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new applicable Special
Servicer if and when it becomes apparent to the applicable Master Servicer that
such conditions precedent will not be satisfied.
As further compensation for its activities hereunder, each Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Serviced Mortgage Loan for which it is the applicable Special Servicer and
that is a Specially Serviced Mortgage Loan as to which it receives any full,
partial or discounted payoff from the related Borrower and with respect to each
Serviced Mortgage Loan that is a Specially Serviced Mortgage Loan and
Administered REO Property for which it is the applicable Special Servicer and as
to which it receives any Condemnation Proceeds, Insurance Proceeds or
Liquidation Proceeds (other than in connection with (A) the purchase of any such
Specially Serviced Mortgage Loan by the General Special Servicer or the Majority
Controlling Class Certificateholder(s) pursuant to or as contemplated by Section
3.18, (B) the purchase or other acquisition of any such Specially Serviced
Mortgage Loan or Administered REO Property by any Controlling Class
Certificateholder(s), the Sole Certificateholder(s), a Master Servicer or a
Special Servicer pursuant to Section 9.01, (C) the repurchase or replacement of
any such Specially Serviced Mortgage Loan or Administered REO Property by a
Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase Agreement as a result of a Material Breach or Material Document Defect,
(D) in the case of a Mortgage Loan included in a Serviced Mortgage Loan Group or
any related Administered REO Property, the purchase or other acquisition of any
such Specially Serviced Mortgage Loan or Administered REO Property by any
related Non-Pooled Mortgage Loan Noteholder pursuant to or as contemplated by
Sections 3.27, 3.28, 3.29 and/or 3.30, as applicable (provided that a
Liquidation Fee shall be payable in connection with such a purchase by a
Non-Pooled Subordinate Noteholder relating to a PCFII Mortgage Loan Group
pursuant to the defaulted loan purchase option granted to it under the related
Mortgage Loan Group Intercreditor Agreement if (i) with respect to the Aviata
Apartments Loan Group, the purchase occurs more than 90 days after the later of
(x) the date when the related Pooled Mortgage Loan becomes a Specially Serviced
Mortgage Loan and (y) the date when such Non-Pooled Subordinate Noteholder
receives notice from the applicable Special Servicer that such transfer to
special servicing has occurred and (ii) with respect to the GGP Portfolio Loan
Group, the purchase occurs more than 90 days after the date on which the
purchase option is first effective), or (E) the purchase of any such Specially
Serviced Mortgage Loan or Administered REO Property by any other creditor of the
related Borrower or any of its Affiliates or other equity holders pursuant to a
right under the related Mortgage Loan Documents (provided that such right is
exercised within the period and in the manner required under such Mortgage Loan
Documents and the payment of the Liquidation Fee would not otherwise be covered
by the price to be paid by such creditor). In no event shall any Liquidation Fee
accrue or be payable in connection with any Liquidation Event involving a
Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property (including
any purchase of such Mortgage Loan by the holder of any related
Non-Trust-Serviced Non-Pooled Pari Passu Companion Loan in accordance with the
related Mortgage Loan Group Intercreditor Agreement and the related Non-Trust
Servicing Agreement). As to each such Specially Serviced Mortgage Loan or
Administered REO Property for which the Special Servicer is entitled to a
Liquidation Fee as set forth above, such Liquidation Fee shall be payable out
of, and shall be calculated by application of the Liquidation Fee Rate to, any
such full, partial or discounted payoff, Condemnation Proceeds, Insurance
Proceeds and/or Liquidation Proceeds received or collected in respect thereof
(other than any portion of such payment or proceeds that represents Post-ARD
Additional Interest or Default Charges) and any Liquidation Fees earned with
respect to any Serviced Non-Pooled Subordinate Loan will be payable solely out
of collections on such Serviced Non-Pooled Subordinate Loan; provided, however,
that any Liquidation Fees earned with respect to a Serviced Mortgage Loan in a
Serviced Mortgage Loan Group that has a Serviced Non-Pooled Subordinate Loan
shall be payable out of any collections on or with respect to such related
Serviced Non-Pooled Subordinate Loan and/or the related
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Serviced Non-Pooled Subordinate Noteholder's share of collections on any related
REO Property prior to payment out of any collections otherwise described above.
The Liquidation Fee with respect to any such Specially Serviced Mortgage Loan
will not be payable if such Specially Serviced Mortgage Loan becomes a Corrected
Mortgage Loan.
A Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
such Special Servicer's responsibilities and obligations under this Agreement
and except as otherwise expressly provided herein.
(d) Each Special Servicer shall be entitled to receive the
following items as additional special servicing compensation (the following
items, collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges actually collected
with respect to any Serviced Pooled Mortgage Loan for which such Special
Servicer is the applicable Special Servicer or any successor REO Mortgage
Loan with respect thereto, to the extent that such Net Default Charges are
payable to such Special Servicer under Section 3.26;
(ii) any and all assumption fees, assumption application
and processing fees, modification fees, extension fees, consent fees,
release fees, waiver fees, fees paid in connection with defeasance and
earn-out fees or other similar fees (excluding Prepayment Premiums and
Yield Maintenance Charges), to the extent actually collected during the
related Collection Period with respect to any Specially Serviced Mortgage
Loans or any REO Mortgage Loans (other than any Non-Trust-Serviced Pooled
Mortgage Loan or any successor REO Property with respect thereto) for
which such Special Servicer is the applicable Special Servicer;
(iii) 50% of any assumption fees, modification fees,
extension fees, consent fees, release fees, waiver fees, fees paid in
connection with defeasance and earn-out fees or other similar fees
(excluding Prepayment Premiums, Yield Maintenance Charges and application
and processing fees), in each case to the extent actually collected during
the related Collection Period with respect to Performing Serviced Mortgage
Loans for which such Special Servicer is the applicable Special Servicer
in connection with a consent, approval or other action that the applicable
Master Servicer is not permitted to take in the absence of the consent or
approval (or deemed consent or approval) of such Special Servicer under
the other provisions of this Agreement; and
(iv) interest or other income earned on deposits in any REO
Account maintained by such Special Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to such REO Account for each Collection Period).
To the extent that any of the amounts described in clauses (i)
through (iii) of the preceding paragraph are collected by a Master Servicer,
such Master Servicer shall promptly pay such amounts to the applicable Special
Servicer and shall not be required to deposit such amounts in such Master
Servicer's Collection Account, any Companion Note Custodial Account or any
Subordinate Note Custodial Account pursuant to Section 3.04.
(e) The Master Servicers and the Special Servicers shall each be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any amounts due and owing to any of Sub-Servicers retained
by it (including any termination fees) and the premiums for any blanket policy
or the standby fee or similar premium, if any, for any master force placed
policy obtained by it insuring against hazard losses pursuant to Section
3.07(b)), if and to the extent such expenses are not payable directly out of any
Collection Account, any Companion Note Custodial Account, any Subordinate Note
Custodial Account, any Servicing Account, Reserve Account or REO Account, and
none of the Master Servicers or the Special Servicers shall be entitled to
reimbursement for any such expense incurred by it except as expressly provided
in this Agreement. If either Master Servicer is required to make any Servicing
Advance hereunder at the discretion of a Special Servicer in accordance with
Section 3.19 or otherwise, such Special Servicer shall promptly provide such
Master Servicer with such documentation regarding the subject Servicing Advance
as such Master Servicer may reasonably request.
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(f) If a Master Servicer or, as contemplated by Section 3.19, a
Special Servicer is required under this Agreement to make a Servicing Advance,
but fails to do so within ten (10) days after such Advance is required to be
made, the Trustee shall, if it has actual knowledge of such failure on the part
of such Master Servicer or such Special Servicer, as the case may be, give
notice of such failure to the defaulting party. If such Advance is not made by
such Master Servicer or such Special Servicer, as the case may be, within one
Business Day after receipt of such notice, then (subject to Section 3.11(h)
below) the Trustee shall make such Advance.
(g) The Master Servicers, the Special Servicers and the Trustee
shall each be entitled to receive interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of each Servicing Advance made thereby
(with its own funds), for so long as such Servicing Advance is outstanding (it
being acknowledged that Advance Interest shall not accrue on Unliquidated
Advances related to prior Servicing Advances). Such interest with respect to any
Servicing Advances shall be payable: (i) first, in accordance with Sections 3.05
and 3.26, out of any Default Charges subsequently collected on or in respect of
the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as to which such
Servicing Advance relates; and (ii) then, after such Servicing Advance is
reimbursed, but only if and to the extent that such Default Charges are
insufficient to cover such Advance Interest, out of general collections on the
Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's
Collection Account or, as and to the extent contemplated by the second paragraph
of Section 3.05(a), the other Master Servicer's Collection Account (subject to,
however, the proviso at the end of the first paragraph of subsection (I) of
Section 3.05(a)). The applicable Master Servicer shall (subject to the operation
of Section 3.05(a)(II)) reimburse itself, the applicable Special Servicer or the
Trustee, as appropriate, for any Servicing Advance made by any such Person with
respect to any Mortgage Loan or REO Property as to which such Master Servicer is
the applicable Master Servicer as soon as practicable after funds available for
such purpose are deposited in such Master Servicer's Collection Account or the
related Companion Note Custodial Account or the related Subordinate Note
Custodial Account, as applicable.
(h) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicers, the Special Servicers or the Trustee shall be
required to make any Servicing Advance that would, if made, constitute a
Nonrecoverable Servicing Advance. The determination by any Person with an
obligation hereunder to make Servicing Advances that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made by such
Person in its reasonable, good faith judgment. In making such recoverability
determination, such Person will be entitled to consider (among other things)
only the obligations of the Borrower under the terms of the related Mortgage
Loan as it may have been modified, to consider (among other things) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions regarding the possibility
and effects of future adverse change with respect to such Mortgaged Properties,
to estimate and consider (among other things) future expenses and to estimate
and consider (among other things) the timing of recoveries. In addition, any
such Person may update or change its recoverability determinations at any time
and may obtain any analysis, Appraisals or market value estimates or other
information in the possession of the applicable Special Servicer for such
purposes. Any determination by any Person with an obligation hereunder to make
Servicing Advances that it has made a Nonrecoverable Servicing Advance or that
any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by an Officer's Certificate delivered
promptly to the Depositor, the Certificate Administrator, the Trustee (unless it
is the Person making such determination), the applicable Special Servicer and
the Controlling Class Representative and, if a Serviced Mortgage Loan Group is
involved, the applicable Serviced Non-Pooled Mortgage Loan Noteholder(s),
setting forth the basis for such determination, accompanied by a copy of any
Appraisal of the related Mortgaged Property or REO Property performed within the
12 months preceding such determination by a Qualified Appraiser, and, if such
reports were used by the Master Servicer or the Trustee to determine that any
Servicing Advance is or would be nonrecoverable, further accompanied by any
other information, including engineers' reports, environmental surveys or
similar reports, that the Person making such determination may have obtained.
Notwithstanding the foregoing, absent bad faith, any such determination as to
the recoverability of any Servicing Advance shall be conclusive and binding on
the Certificateholders and, in all cases, the Trustee shall be entitled to
conclusively rely on any determination of nonrecoverability that may have been
made by the applicable Master Servicer or Special Servicer or, if appropriate,
any party under the related Non-Trust Servicing Agreement (in the case of a
Non-Trust-Serviced Pooled Mortgage Loan) with respect to a particular Servicing
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Advance for any Mortgage Loan or REO Property, and the applicable Master
Servicer and the applicable Special Servicer shall each be entitled to
conclusively rely on any determination of nonrecoverability that may have been
made by the other such party or, if appropriate, any party under the related
Non-Trust Servicing Agreement (in the case of a Non-Trust-Serviced Pooled
Mortgage Loan) with respect to a particular Servicing Advance for any Mortgage
Loan or REO Property. The applicable Special Servicer shall promptly furnish any
party required to make Servicing Advances hereunder with any information in its
possession regarding the Specially Serviced Pooled Mortgage Loans and REO
Properties as such party required to make Servicing Advances may reasonably
request. A copy of any such Officer's Certificate (and accompanying information)
of a Master Servicer shall also be delivered promptly to the applicable Special
Servicer, a copy of any such Officer's Certificate (and accompanying
information) of the applicable Special Servicer shall also be promptly delivered
to the Master Servicer for the subject Mortgage Loan or REO Property, and a copy
of any such Officer's Certificates (and accompanying information) of the Trustee
or any Fiscal Agent shall also be promptly delivered to the Certificate
Administrator, the Controlling Class Representative, the applicable Special
Servicer, the applicable Master Servicer and, if a Serviced Mortgage Loan Group
is involved, the related Serviced Non-Pooled Mortgage Loan Noteholder(s). The
applicable Master Servicer shall consider Unliquidated Advances in respect of
prior Servicing Advances as outstanding Advances for purposes of recoverability
determinations as if such Unliquidated Advance were a Servicing Advance.
The applicable Special Servicer for each Serviced Mortgage Loan
shall also be entitled to make a determination (subject to the same standards
and procedures that apply in connection with a determination by the applicable
Master Servicer) to the effect that a prior Servicing Advance (or Unliquidated
Advance in respect thereof) previously made hereunder by the applicable Master
Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable Servicing
Advance or that any proposed Servicing Advance by the applicable Master Servicer
(or, if applicable, the Trustee), if made, would constitute a Nonrecoverable
Servicing Advance, in which case such Servicing Advance shall constitute a
Nonrecoverable Servicing Advance for all purposes of this Agreement.
(i) Notwithstanding anything to the contrary set forth herein, the
applicable Master Servicer may (and, at the direction of the applicable Special
Servicer if a Serviced Mortgage Loan that is a Specially Serviced Mortgage Loan
or an Administered REO Property is involved, shall) pay directly out of such
Master Servicer's Collection Account any servicing expense that, if paid by the
applicable Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance for the subject Mortgage Loan or REO Property;
provided that (A) it shall be a condition to such payment that the applicable
Master Servicer (or the applicable 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 is in the best
interests of the Certificateholders and, if applicable, the Serviced Non-Pooled
Mortgage Loan Noteholders (as a collective whole), as evidenced by an Officer's
Certificate delivered promptly to the Depositor, the Certificate Administrator,
the Trustee and the Controlling Class Representative and, if a Serviced Mortgage
Loan Group is involved, the related Serviced Non-Pooled 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; (B) if such servicing expense relates to a Serviced Mortgage Loan
Group, the payment of such expense shall be subject to the proviso at the end of
the first paragraph of subsection (I) of Section 3.05(a); and (C) such servicing
expense shall be deemed to constitute a Nonrecoverable Advance for purposes of
subsection (II)(iv) of Section 3.05(a) and the definition of "Principal
Distribution Amount" and the terms and conditions set forth in such subsection
that are applicable to Nonrecoverable Advances shall apply to such servicing
expense. A copy of any such Officer's Certificate (and accompanying information)
of a Master Servicer shall also be delivered promptly to the Controlling Class
Representative (and, if a Serviced Mortgage Loan Group is involved, the related
Serviced Non-Pooled Mortgage Loan Noteholder(s)) and the applicable Special
Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the applicable Special Servicer shall also be promptly delivered
to the applicable Master Servicer and the Controlling Class Representative (and,
if a Serviced Mortgage Loan Group is involved, the related Serviced Non-Pooled
Mortgage Loan Noteholder(s)).
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SECTION 3.12. Property Inspections; Collection of Financial
Statements.
(a) The applicable Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property securing a Specially
Serviced Mortgage Loan as soon as practicable (but in any event not later than
60 days) after the subject Serviced Mortgage Loan becomes a Specially Serviced
Mortgage Loan (and such Special Servicer shall continue to perform or cause to
be performed a physical inspection of the subject Mortgaged Property at least
once per calendar year thereafter for so long as the subject Serviced Mortgage
Loan remains a Specially Serviced Mortgage Loan or if such Mortgaged Property
becomes an REO Property); provided that such Special Servicer shall be entitled
to reimbursement of the reasonable and direct out-of-pocket expenses incurred by
it in connection with each such inspection as Servicing Advances and otherwise
as contemplated by Section 3.05(a). The applicable Master Servicer shall, at its
own expense, inspect or cause to be inspected each Mortgaged Property (other
than the Mortgaged Property securing a Non-Trust-Serviced Pooled Mortgage Loan,
Mortgaged Properties related to Specially Serviced Mortgage Loans and REO
Properties), every calendar year beginning in 2008, or every second calendar
year beginning in 2008 if the unpaid principal balance of the related Serviced
Pooled Mortgage Loan is less than $2,000,000; provided that with respect to any
Serviced Pooled Mortgage Loan (other than a Specially Serviced Pooled Mortgage
Loan) that has an unpaid principal balance of less than $2,000,000 and has been
placed on the CMSA Servicer Watch List, the applicable Master Servicer, at its
own expense, shall, at the request of the Controlling Class Representative (or,
if such Serviced Pooled Mortgage Loan is included in a Serviced Mortgage Loan
Group, at the request of either the Controlling Class Representative or the
related Serviced Mortgage Loan Group Controlling Party if and to the extent
required under the applicable Mortgage Loan Group Intercreditor Agreement),
inspect or cause to be inspected the related Mortgaged Property every calendar
year beginning in 2008 so long as such Mortgage Loan continues to be on the CMSA
Servicer Watch List; and provided, further, that neither Master Servicer will be
obligated to inspect any particular Mortgaged Property during any one-year or
two-year, as applicable, period contemplated above in this sentence, if the
applicable Special Servicer has already done so during that period pursuant to
the preceding sentence. Each of the Master Servicers and the Special Servicers
shall prepare (and, promptly following preparation, if there has been a material
adverse change in the condition of the subject Mortgaged Property or REO
Property, as applicable), deliver to or make available (on such Master
Servicer's or Special Servicer's internet website) to the Trustee, the
Controlling Class Representative, the applicable Master Servicer or Special
Servicer (and, if a Mortgaged Property or REO Property relates to a Serviced
Mortgage Loan Group, the related Serviced Non-Pooled Mortgage Loan Noteholder(s)
if and to the extent required under the applicable Mortgage Loan Group
Intercreditor Agreement), and the Rating Agencies) a written report of each such
inspection performed by it or on its behalf that sets forth in detail the
condition of the subject Mortgaged Property and that specifies the occurrence or
existence of: (i) any vacancy in the Mortgaged Property that is, in the
reasonable judgment of such Master Servicer or Special Servicer (or its
respective designee), as the case may be, material and is evident from such
inspection, (ii) any abandonment of the Mortgaged Property, (iii) any change in
the condition or value of the Mortgaged Property that is, in the reasonable
judgment of such Master Servicer or Special Servicer (or its respective
designee), as the case may be, material and is evident from such inspection,
(iv) any waste on or deferred maintenance in respect of the Mortgaged Property
that is evident from such inspection or (v) any capital improvements made that
are evident from such inspection. Such report may be in the form of the standard
property inspection report (or such other form for the presentation of such
information) as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally. Each of the Master Servicers
and the Special Servicers shall deliver to the Controlling Class Representative,
and, if applicable, the applicable Serviced Non-Pooled Mortgage Loan
Noteholder(s) and, upon request, to the Certificate Administrator and the
Trustee a copy (or image in suitable electronic media) of each such written
report prepared by it, in each case within 30 days following the request (or, if
later or if request is not required, within 30 days following the later of
completion of the related inspection if the inspection is performed by the
applicable Master Servicer or Special Servicer, as appropriate, or receipt of
the related inspection report if the inspection is performed by a third party).
The copy of each such inspection report that is delivered by a Master Servicer
or Special Servicer to the Controlling Class Representative shall be imaged with
the Centerline Naming Convention for Electronic File Delivery.
(b) Commencing with respect to (x) solely in the case of Mortgage
Loans that have their first Due Dates after December 2007, the calendar quarter
ending on March 31, 2008 and (y) in the case of all other Mortgage
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Loans, the calendar year ending December 31, 2007 (as to annual information) and
the calendar quarter ending on March 31, 2008 (as to quarterly information), the
applicable Special Servicer, in the case of any Specially Serviced Mortgage
Loan, and the applicable Master Servicer, in the case of each Performing
Serviced Mortgage Loan, shall make reasonable efforts to collect promptly from
each related Borrower quarterly and annual operating statements, budgets and
rent rolls of the related Mortgaged Property, and quarterly and annual financial
statements of such Borrower, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage Loan Documents. The applicable
Master Servicer shall deliver images in suitable electronic media (and labeled
according to the Centerline Naming Convention for Electronic File Delivery) of
all of the foregoing items so collected or obtained by it to the Persons and in
the time and manner set forth in Section 4.02(d). In addition, the applicable
Special Servicer shall cause quarterly and annual operating statements, budgets
and rent rolls to be regularly prepared in respect of each REO Property and
shall collect all such items promptly following their preparation. The
applicable Special Servicer shall deliver images in suitable electronic media
(and labeled according to the Centerline Naming Convention for Electronic File
Delivery) of all of the foregoing items so collected or obtained by it to the
applicable Master Servicer, the Controlling Class Representative and, if a
Serviced Mortgage Loan Group is involved, the applicable Serviced Non-Pooled
Mortgage Loan Noteholder(s) if and to the extent required under the applicable
Mortgage Loan Group Intercreditor Agreement, within 30 days of its receipt
thereof. In addition, to the extent that the applicable Master Servicer receives
any quarterly financial statements for the quarter ended September 30, 2007,
such Master Servicer shall forward copies of such financial statements to the
Controlling Class Representative.
SECTION 3.13. [Reserved].
SECTION 3.14. [Reserved].
SECTION 3.15. Access to Information.
(a) Each of the Master Servicers and the Special Servicers shall
afford to the OTS, the FDIC, any other banking or insurance regulatory authority
that may exercise authority over any Certificateholder or Certificate Owner, the
Certificate Administrator, the Trustee, the Depositor, each Underwriter, each
Rating Agency, the Controlling Class Representative and each Serviced Non-Pooled
Mortgage Loan Noteholder, access to any records regarding the Mortgage Loans
(or, in the case of a Serviced Non-Pooled Mortgage Loan Noteholder, only the
related Serviced Non-Pooled Mortgage Loan) and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law,
the terms of the related Mortgage Loan Documents or contract entered into prior
to the Closing Date or to the extent such information is subject to a privilege
under applicable law to be asserted on behalf of the Certificateholders. At the
election of the applicable Master Servicer, such access may be afforded to the
Certificate Administrator, the Trustee, the Depositor, each Rating Agency, the
Controlling Class Representative and each Serviced Non-Pooled Mortgage Loan
Noteholder, by the delivery of copies of information as requested by such Person
and the applicable Master Servicer shall be permitted to require payment of a
sum sufficient to cover the reasonable out-of-pocket costs incurred by it in
making such copies (other than with respect to the Rating Agencies); provided,
however, that the applicable Master Servicer shall be entitled to require such
payment from the Controlling Class Representative in any single calendar month
only to the extent that such costs in such month exceed $100.00. Such access
shall otherwise be afforded without charge but only upon reasonable prior
written request and during normal business hours at the offices of the
particular Master Servicer or Special Servicer, as the case may be, designated
by it.
(b) In connection with providing access to information pursuant to
clause (a) of this Section 3.15, each of the Master Servicers and the Special
Servicers may (i) affix a reasonable disclaimer to any information provided by
it for which it is not the original source (without suggesting liability on the
part of any other party hereto); (ii) affix to any information provided by it a
reasonable statement regarding securities law restrictions on such information
and/or condition access to information on the execution of a reasonable
confidentiality agreement; (iii) withhold access to confidential information or
any intellectual property; and (iv) withhold access to items of information
contained in the Servicing File for any Serviced Mortgage Loan if the disclosure
of such items is prohibited by applicable law or the provisions of any related
Mortgage Loan Documents or would constitute a waiver of the attorney-client
privilege.
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(c) Upon the request of the Controlling Class Representative or
the Serviced Mortgage Loan Group Controlling Party (in connection with a
Serviced Mortgage Loan Group that includes one or more Non-Pooled Subordinate
Loans), as applicable, made not more frequently than once a month during the
normal business hours of the Master Servicers and the Special Servicers, each of
the Master Servicers and the Special Servicers shall, without charge, make a
knowledgeable Servicing Officer available either by telephone (with Servicing
Officers of each of the Master Servicers and Special Servicers participating
simultaneously if the Controlling Class Representative or the related Serviced
Mortgage Loan Group Controlling Party, as applicable, so requests) or, at the
option of the Controlling Class Representative or the related Serviced Mortgage
Loan Group Controlling Party, as applicable, if it provides reasonable advance
notice, at the office of such Servicing Officer, to verbally answer questions
from the Controlling Class Representative or the related Serviced Mortgage Loan
Group Controlling Party, as applicable, regarding the performance and servicing
of the Serviced Mortgage Loans and/or Administered REO Properties for which such
Master Servicer or such Special Servicer, as the case may be, is responsible.
(d) Notwithstanding any provision of this Agreement to the
contrary, the failure of a Master Servicer or Special Servicer to disclose any
information otherwise required to be disclosed by it pursuant to this Agreement
shall not constitute a breach of this Agreement to the extent that such Master
Servicer or such Special Servicer, as the case may be, determines, in its
reasonable and good faith judgment consistent with the Servicing Standard, that
such disclosure would violate applicable law or any provision of a Mortgage Loan
Document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties, constitute a waiver of the attorney-client
privilege on behalf of the Trust or the Trust Fund or otherwise materially harm
the Trust or the Trust Fund.
(e) None of the Master Servicers or the Special Servicers shall be
liable for providing, disseminating or withholding information in accordance
with the terms of this Agreement. In addition to their other rights hereunder,
each of the Master Servicers and the Special Servicers (and their respective
employees, attorneys, officers, directors and agents) shall, in each case, be
indemnified by the Trust Fund for any claims, losses or expenses arising from
any such provision, dissemination or withholding.
SECTION 3.16. Title to Administered REO Property; REO Account.
(a) If title to any Administered REO Property is acquired, the
deed or certificate of sale shall be issued to the Trustee or its nominee, on
behalf of the Certificateholders (and, in the case of a Serviced Mortgage Loan
Group, also the related Serviced Non-Pooled Mortgage Loan Noteholder(s)), or,
subject to Section 3.09(b), to a single member limited liability company of
which the Trust is the sole member, which limited liability company is formed or
caused to be formed by the applicable Special Servicer at the expense of the
Trust (or, in the case of any REO Property related to a Pooled Mortgage Loan
that is part of a Serviced Mortgage Loan Group, the Trust and the related
Serviced Non-Pooled Mortgage Loan Noteholders; it being the intention that any
related Serviced Non-Pooled Subordinate Noteholder bear such expense prior to
the Trust) for the purpose of taking title to one or more REO Properties
pursuant to this Agreement. Any such limited liability company formed by such
Special Servicer shall be a manager-managed limited liability company, with such
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
applicable Special Servicer shall sell any Administered REO Property in
accordance with Section 3.18 by the end of the third calendar year following the
year in which the Trust acquires ownership of such REO Property for purposes of
Section 860G(a)(8) of the Code, unless such Special Servicer either (i) applies,
more than 60 days prior to the expiration of such liquidation period, and is
granted an extension of time (an "REO Extension") by the IRS to sell such REO
Property or (ii) obtains for the Trustee an Opinion of Counsel, addressed to the
Trustee, to the effect that the holding by the Trust of such REO Property
subsequent to the end of the third calendar year following the year in which
such acquisition occurred will not result in an Adverse REMIC Event with respect
to any REMIC Pool or an Adverse Grantor Trust Event with respect to any Grantor
Trust Pool. Regardless of whether such Special Servicer applies for or is
granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel referred to in clause (ii)
of such sentence, such Special Servicer shall act in accordance with the
Servicing Standard to liquidate the subject Administered REO Property
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on a timely basis. If such Special Servicer is granted such REO Extension or
obtains such Opinion of Counsel with respect to any Administered REO Property,
such Special Servicer shall (i) promptly forward a copy of such REO Extension or
Opinion of Counsel to the Trustee, and (ii) sell the subject Administered REO
Property within such extended period as is permitted by such REO Extension or
contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by a Special Servicer in connection with its applying for and being
granted the REO Extension contemplated by clause (i) of the third preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company, shall be covered by, and be reimbursable as, a
Servicing Advance.
(b) The applicable Special Servicer shall segregate and hold all
funds collected and received by it in connection with any Administered REO
Property separate and apart from its own funds and general assets. If any REO
Acquisition occurs in respect of any Mortgaged Property securing a Serviced
Mortgage Loan, then the applicable Special Servicer shall establish and maintain
one or more accounts (collectively, an "REO Account"), to be held on behalf of
the Trustee in trust for the benefit of the Certificateholders (or, in the case
of any REO Property related to a Serviced Mortgage Loan Group, on behalf of both
the Certificateholders and the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)), as a collective whole, for the retention of revenues and other
proceeds derived from such Administered REO Property. Each account that
constitutes an REO Account shall be an Eligible Account. The applicable Special
Servicer shall deposit, or cause to be deposited, in its REO Account, within one
Business Day following receipt, all REO Revenues, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received in respect of an
Administered REO Property. Funds in an REO Account may be invested in Permitted
Investments in accordance with Section 3.06. The Special Servicer is authorized
to pay out of related Liquidation Proceeds, Insurance Proceeds and/or
Condemnation Proceeds, if any, any Liquidation Expenses incurred in respect of
an Administered REO Property and outstanding at the time such proceeds are
received, as well as any other items that otherwise may be paid by the
applicable Master Servicer out of such Liquidation Proceeds as contemplated by
Section 3.05(a). The applicable Special Servicer shall be entitled to make
withdrawals from its REO Account to pay itself, as Additional Special Servicing
Compensation, 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, if any, with respect to such REO Account for any
Collection Period). The applicable Special Servicer shall give notice to the
other parties hereto of the location of its REO Account when first established
and of the new location of such REO Account prior to any change thereof.
(c) The applicable Special Servicer shall withdraw from its 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 Administered
REO Property. Monthly within two (2) Business Days following the end of each
Collection Period, each Special Servicer shall withdraw from its REO Account and
deposit into the applicable Master Servicer's Collection Account, or deliver to
the applicable Master Servicer for deposit into such Collection Account, the
aggregate of all amounts received in respect of each Administered REO Property
during such Collection Period that are then on deposit in such REO Account, net
of any withdrawals made out of such amounts pursuant to the preceding sentence;
provided that (A) in the case of each Administered REO Property, the applicable
Special Servicer may retain in its REO Account such portion of such proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of such
Administered REO Property (including the creation of a reasonable reserve for
repairs, replacements, necessary capital improvements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
reasonably expected to be incurred during the following 12-month period and (B)
if such REO Property relates to a Serviced Mortgage Loan Group, the applicable
Master Servicer shall make, from such amounts so deposited or remitted as
described above, any deposits into any related Companion Note Custodial Account
and/or related Subordinate Note Custodial Account contemplated by Section
3.04(e) or Section 3.04(f), as applicable. For the avoidance of doubt, such
amounts withdrawn from an REO Account and deposited into the applicable Master
Servicer's Collection Account following the end of each Collection Period
pursuant to the preceding sentence shall, upon such deposit, be construed to
have been received by the applicable Master Servicer during such Collection
Period.
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(d) Each 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, its REO Account pursuant to Section 3.16(b)
or 3.16(c).
(e) Notwithstanding anything to the contrary, this Section 3.16
shall not apply to any REO Property related to a Non-Trust-Serviced Pooled
Mortgage Loan.
SECTION 3.17. Management of Administered REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Serviced Mortgage Loan, the applicable Special Servicer
shall review the operation of such Mortgaged Property and determine the nature
of the income that would be derived from such property if it were acquired by
the Trust. If the applicable 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 (such tax referred to
herein as an "REO Tax"), then such Mortgaged Property may be Directly
Operated by such Special Servicer as REO Property, other than holding such
REO Property for sale or lease or performing construction work thereon;
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be subject
to an REO Tax, but that a lease of such property to another party to
operate such property, or the performance of some services by an
Independent Contractor with respect to such property, or another method of
operating such property would not result in income subject to an REO Tax,
then such Special Servicer may (provided that in the judgment of such
Special Servicer, exercised in accordance with the Servicing Standard, it
is commercially reasonable) so lease or otherwise operate such REO
Property; or
(iii) It is reasonable to believe that Directly Operating
such property as REO Property could result in income subject to an REO Tax
and either (i) that the income or earnings with respect to such REO
Property will offset any REO Tax relating to such income or earnings and
will maximize the net recovery from the applicable REO Property to the
Certificateholders (taking into account that any related Serviced
Non-Pooled Mortgage Loan Noteholder(s) do not have any obligation under
the related Mortgage Loan Group Intercreditor Agreement to bear the effect
of any such REO Tax) or (ii) that no commercially reasonable means exists
to operate such property as REO Property without the Trust incurring or
possibly incurring an REO Tax on income from such property, then such
Special Servicer shall deliver to the Tax Administrator and the
Controlling Class Representative (and, if a Serviced Mortgage Loan Group
is involved, the related Serviced Mortgage Loan Group Controlling Party to
the extent required under the applicable Mortgage Loan Group Intercreditor
Agreement), in writing, a proposed plan (the "Proposed Plan") to manage
such property as REO Property. Such plan shall include potential sources
of income and good faith estimates of the amount of income from each such
source. Within a reasonable period of time after receipt of such plan, the
Tax Administrator shall consult with the applicable Special Servicer and
shall advise such Special Servicer of the Trust's federal income tax
reporting position with respect to the various sources of income that the
Trust would derive under the Proposed Plan. In addition, the Tax
Administrator shall (to the maximum extent reasonably possible and at a
reasonable fee, which fee shall be an expense of the Trust) advise such
Special Servicer of the estimated amount of taxes that the Trust would be
required to pay with respect to each such source of income. After
receiving the information described in the two preceding sentences from
the Tax Administrator, such Special Servicer shall either (A) implement
the Proposed Plan (after acquiring the respective Mortgaged Property as
REO Property) or (B) manage and operate such property in a manner that
would not result in the imposition of an REO Tax on the income derived
from such property.
Subject to Section 3.17(b), the applicable Special Servicer's
decision as to how each Administered REO Property shall be managed and operated
shall be in accordance with the Servicing Standard. Neither the applicable
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Special Servicer nor the Tax Administrator shall be liable to the
Certificateholders, the Trustee, the Trust, the other parties hereto, any
beneficiaries hereof or each other for errors in judgment made in good faith in
the exercise of their discretion while performing their respective
responsibilities under this Section 3.17(a) with respect to any Administered REO
Property. Nothing in this Section 3.17(a) is intended to prevent the sale of any
Administered REO Property pursuant to the terms and subject to the conditions of
Section 3.18.
(b) If title to any Administered REO Property is acquired, the
applicable Special Servicer shall manage, conserve, protect and operate such REO
Property for the benefit of the Certificateholders (or, in the case of any REO
Property related to a Serviced Mortgage Loan Group, on behalf of both the
Certificateholders and the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)), as a collective whole, solely for the purpose of its prompt
disposition and sale in accordance with Section 3.18, in a manner that does not
cause such Administered REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or, except as
contemplated by Section 3.17(a), 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, in an Adverse REMIC Event with respect to any REMIC Pool or in an
Adverse Grantor Trust Event with respect to any Grantor Trust Pool. Except as
contemplated by Section 3.17(a), the applicable Special Servicer shall not enter
into any lease, contract or other agreement with respect to any Administered REO
Property that causes the Trust to receive, and (unless required to do so under
any lease, contract or agreement to which the applicable Special Servicer or the
Trust may become a party or successor to a party due to a foreclosure,
deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or
remedies with respect to the related Serviced Mortgage Loan) shall not, with
respect to any Administered REO Property, cause or allow the Trust to receive,
any "net income from foreclosure property" that is subject to taxation under the
REMIC Provisions. Subject to the foregoing, however, the applicable Special
Servicer shall have full power and authority to do any and all things in
connection with the administration of any Administered REO Property, as are
consistent with the Servicing Standard and, consistent therewith, shall withdraw
from its REO Account , to the extent of amounts on deposit therein with respect
to such 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 other costs and expenses necessary to maintain,
lease, sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the applicable Special Servicer's REO
Account with respect to any Administered REO Property are insufficient for the
purposes contemplated by the preceding sentence with respect to such REO
Property, the applicable Master Servicer shall, at the direction of such Special
Servicer, but subject to Section 3.11(h), make a Servicing Advance of such
amounts as are necessary for such purposes unless such Master Servicer or such
Special Servicer determines, in its reasonable judgment, that such advances
would, if made, be Nonrecoverable Servicing Advances; provided, however, that
such Master Servicer may in its sole discretion make any such Servicing Advance
without regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
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(c) The applicable Special Servicer may, and, if required for the
Administered REO Property to continue to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code, shall, contract with any
Independent Contractor for the operation and management of any Administered REO
Property, provided that:
(i) the terms and conditions of any such contract may not
be inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall
be expenses of the Trust) shall be reasonable and customary in
consideration of the nature and locality of such REO Property;
(iii) any such contract shall be consistent with Treasury
Regulations Section 1.856-6(e)(6) and shall require, or shall be
administered to require, that the Independent Contractor, in a timely
manner, (A) pay all costs and expenses incurred in connection with the
operation and management of such REO Property, including those listed in
Section 3.17(b) above, and (B) remit all related revenues collected (net
of its fees and such costs and expenses) to such Special Servicer upon
receipt;
(iv) none of the provisions of this Section 3.17(c)
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve such Special Servicer of
any of its duties and obligations hereunder with respect to the operation
and management of any such REO Property; and
(v) such Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property, and such Special Servicer shall comply with the Servicing
Standard in maintaining such Independent Contractor.
Each Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of such Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any Administered REO
Property are greater than the revenues available from such property, such excess
costs shall be covered by, and be reimbursable as, a Servicing Advance.
(d) Without limiting the generality of the foregoing, the
applicable Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend
any New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents from
Real Property;
(ii) permit any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on any REO
Property, other than the repair or maintenance thereof or the completion
of a building or other improvement thereon, and then only if more than 10%
of the construction of such building or other improvement was completed
before default on the related Mortgage Loan become imminent, all within
the meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Section
3.17(a)(i), (a)(ii) and (a)(iii) and above, Directly Operate, or allow any
other Person, other than an Independent Contractor, to Directly Operate,
any REO Property on any date more than 90 days after its Acquisition Date.
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(e) Notwithstanding anything to the contrary, this Section 3.17
shall not apply to any REO Property related to a Non-Trust-Serviced Pooled
Mortgage Loan.
SECTION 3.18. Fair Value Option; Sale of Administered REO
Properties; Sale of the Non-Trust-Serviced Pooled
Mortgage Loan.
(a) The applicable Master Servicer, the applicable Special
Servicer or the Trustee may sell or purchase, or permit the sale or purchase of,
a Pooled Mortgage Loan or REO Property (or, in the case of any REO Property
related to a Mortgage Loan Group, such REO Property and/or the beneficial
interest of the Trust Fund in such REO Property) only (i) on the terms and
subject to the conditions set forth in this Section 3.18, (ii) as otherwise
expressly provided in or contemplated by Sections 2.03 and 9.01 of this
Agreement, (iii) in the case of a Pooled Mortgage Loan (or REO Property related
thereto) with a related mezzanine loan, in connection with a Mortgage Loan
default if and as set forth in the related intercreditor agreement, (iv) in the
case of a Pooled Mortgage Loan (or REO Property related thereto) included in a
Serviced Mortgage Loan Group, in connection with a Mortgage Loan default if and
as set forth in the related Mortgage Loan Group Intercreditor Agreement, or (v)
in the case of a Non-Trust-Serviced Pooled Mortgage Loan (or REO Property
related thereto), pursuant to a purchase option (if any) under the related
Mortgage Loan Group Intercreditor Agreement and/or the related Non-Trust
Servicing Agreement.
(b) If any Pooled Mortgage Loan becomes a Specially Designated
Defaulted Pooled Mortgage Loan, then the applicable Special Servicer shall so
notify the Certificate Administrator, the Trustee, the applicable Master
Servicer, the Controlling Class Representative and the Holder(s) of the
Controlling Class (and, if the affected Pooled Mortgage Loan is included in a
Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled
Subordinate Loans, the related Non-Pooled Mortgage Loan Noteholder(s)), in
writing. In addition, the applicable Special Servicer shall determine (in
accordance with the Servicing Standard, taking into account the considerations
contemplated by the following paragraph, but without regard to the Purchase
Option provided for in Section 3.18(c) below), and report to the Trustee, the
applicable Master Servicer, the Controlling Class Representative and the
Holder(s) of the Controlling Class, the Fair Value of such Pooled Mortgage Loan.
The applicable Special Servicer's determination of the Fair Value of any
Specially Designated Defaulted Pooled Mortgage Loan shall be made as soon as
reasonably practicable, but in no event later than 30 days after the applicable
Special Servicer receives the requisite Appraisal or any other third-party
reports that it deems necessary to make the determination. If at any time the
applicable Special Servicer becomes aware of any circumstances or conditions
that have occurred or arisen with respect to any Specially Designated Defaulted
Pooled Mortgage Loan or the related Mortgaged Property subsequent to, and that
would, in the applicable Special Servicer's reasonable judgment, materially
affect, the applicable Special Servicer's most recent Fair Value determination
with respect to such Specially Designated Defaulted Pooled Mortgage Loan, then
the applicable Special Servicer shall redetermine (in a manner as is permitted
above, but taking into account any such new circumstances or conditions known to
the applicable Special Servicer), and report to the Certificate Administrator,
the Trustee, the Controlling Class Representative and the applicable Master
Servicer (and the Certificate Administrator shall, in turn, report to the
Holder(s) of the Controlling Class), the updated Fair Value of the subject
Specially Designated Defaulted Pooled Mortgage Loan. In addition, if the
applicable Special Servicer has not accepted a bid at the Fair Value of the
Mortgage Loan, as most recently determined by the applicable Special Servicer,
prior to the expiration of 90 days from such determination, and thereafter the
applicable Special Servicer receives a bid at such Fair Value or a request from
a holder of the Purchase Option for an updated determination of the Fair Value
of the Mortgage Loan, the applicable Special Servicer shall redetermine (in the
same manner as provided above, but taking into account any such new
circumstances or conditions known to the applicable Special Servicer), and
report to the Trustee, the Certificate Administrator, the Controlling Class
Representative and the applicable Master Servicer (and the Certificate
Administrator shall, in turn, report to the Holder(s) of the Controlling Class),
the updated Fair Value of the subject Specially Designated Defaulted Pooled
Mortgage Loan; provided, however, that the applicable Special Servicer may rely
on the existing third-party information if it deems such reliance to be
reasonable.
In determining the Fair Value of any Specially Designated Defaulted
Pooled Mortgage Loan, the applicable Special Servicer shall take into account,
among other factors, the period and amount of the delinquency on
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such Mortgage Loan, the occupancy level and physical condition of the related
Mortgaged Property, the state of the local economy in the area where the related
Mortgaged Property is located, and the time and expense associated with and the
expected recovery from a purchaser's foreclosing on the related Mortgaged
Property or working out such Mortgage Loan. In addition, the applicable Special
Servicer shall refer to all relevant information contained in the Servicing
File, shall take into account the most recent Appraisal obtained or conducted
with respect to the related Mortgaged Property in the preceding 12-month period
in accordance with this Agreement and shall not determine the Fair Value of any
Specially Designated Defaulted Pooled Mortgage Loan without such an Appraisal;
provided that the applicable Special Servicer shall take account of any change
in the circumstances regarding or the condition of the related Mortgaged
Property actually known to the applicable Special Servicer that has occurred or
arisen subsequent to, and that would materially affect the value of the related
Mortgaged Property reflected in, such Appraisal. Furthermore, the applicable
Special Servicer may consider available objective third-party information
obtained from generally available sources, as well as information obtained from
vendors providing real estate services to the applicable Special Servicer,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related Mortgaged
Property is located. The applicable Special Servicer may, to the extent it is
reasonable to do so in accordance with the Servicing Standard, conclusively rely
on any opinions or reports of qualified Independent third parties expert in real
estate or commercial mortgage loan matters with at least 5 years experience in
valuing or investing in loans similar to the subject Specially Designated
Defaulted Mortgage Loan in making such determination. The reasonable costs of
all appraisals, inspection reports and broker opinions of value, incurred by the
applicable Special Servicer pursuant to this Section 3.18(b) shall constitute,
and be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information made by the
applicable Special Servicer in order to allow the applicable Special Servicer to
perform its duties pursuant to this Section 3.18(b).
Notwithstanding the foregoing, in connection with the DRA/Colonial
Office Portfolio Pooled Mortgage Loan, following any notice or report by the
related Non-Trust Master Servicer to the applicable Master Servicer hereunder to
the effect that an event similar to an Appraisal Trigger Event has occurred with
respect to the related Mortgage Loan Group for purposes of such Non-Trust
Servicing Agreement, the General Special Servicer, but only at its own election
or upon the direction of the Controlling Class Representative, shall determine
the Fair Value of the DRA/Colonial Office Portfolio Pooled Mortgage Loan.
Notwithstanding the foregoing, no Fair Value shall be determined
under this Agreement with respect to the RRI Hotel Portfolio Pooled Mortgage
Loan. Instead, the Fair Value shall be deemed to be equal to the fair value
thereof as determined by the applicable Non-Trust Special Servicer pursuant to
the provisions of the applicable Non-Trust Servicing Agreement.
(c) The Majority Controlling Class Certificateholder(s) or any
assignee thereof may, at its or their option, purchase from the Trust any
Specially Designated Defaulted Pooled Mortgage Loan (such option, the "Purchase
Option"), at a cash price (the "Option Price") equal to the Fair Value of such
Mortgage Loan (as most recently determined by the applicable Special Servicer
and reported to the Trustee, the Certificate Administrator, the Controlling
Class Representative and the applicable Master Servicer as provided in Section
3.18(b) above) or, if no such Fair Value has yet been established as provided in
Section 3.18(b) above or if the applicable Special Servicer is in the process of
redetermining such Fair Value because of a change in circumstances, equal to the
Purchase Price; provided that:
(i) the Purchase Option with respect to any Specially
Designated Defaulted Pooled Mortgage Loan will remain in effect only for
the period (the "Option Period") that commences on the date that such
Mortgage Loan first becomes a Specially Designated Defaulted Pooled
Mortgage Loan and ends on the earlier of (A) the date on which such
Mortgage Loan becomes a Corrected Mortgage Loan or otherwise ceases to be
a Specially Designated Defaulted Pooled Mortgage Loan and (B) the date on
which a Liquidation Event occurs with respect to such Pooled Mortgage Loan
or the related Mortgaged Property becomes an REO Property;
(ii) the Purchase Option with respect to any Specially
Designated Defaulted Pooled Mortgage Loan shall be assignable by the
Majority Controlling Class Certificateholder(s) during the Option
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Period to any third party (but in any event any assignment of the Purchase
Option to the related Borrower under such Specially Designated Defaulted
Pooled Mortgage Loan or any Affiliate of such Borrower shall constitute a
violation of this Section 3.18), provided that the parties hereto are
notified in writing of the assignment;
(iii) if the Purchase Option with respect to any Specially
Designated Defaulted Pooled Mortgage Loan is not exercised by the Majority
Controlling Class Certificateholder(s) or any assignee thereof within 60
days after the Fair Value of such Mortgage Loan has initially been
established as provided in Section 3.18(b) above, then the Majority
Controlling Class Certificateholder(s) shall be deemed to have assigned
such Purchase Option, for a 30-day period only, to the applicable Special
Servicer;
(iv) during the 30-day period following the assignment to
it of the Purchase Option with respect to any Specially Designated
Defaulted Pooled Mortgage Loan, the applicable Special Servicer shall be
entitled to exercise such Purchase Option or to assign such Purchase
Option to any third party (but in any event any assignment of the Purchase
Option to the related Borrower under such Specially Designated Defaulted
Pooled Mortgage Loan or any Affiliate of such Borrower shall constitute a
violation of this Section 3.18), provided that the other parties hereto
are notified in writing of the assignment;
(v) if the Purchase Option with respect to any Specially
Designated Defaulted Pooled Mortgage Loan is not exercised by the
applicable Special Servicer or its assignee within the 30-day period
following the assignment of such Purchase Option to the applicable Special
Servicer as contemplated by clause (iii) above, then such Purchase Option
will automatically revert to the Majority Controlling Class
Certificateholder(s); and
(vi) prior to any exercise of the Purchase Option with
respect to any Specially Designated Defaulted Pooled Mortgage Loan by the
applicable Special Servicer or any Affiliate thereof, subject to the
following paragraph, the Trustee shall confirm and report to the
applicable Master Servicer, the Certificate Administrator and the
applicable Special Servicer that the applicable Special Servicer's
determination of the Fair Value of such Mortgage Loan is consistent with
or greater than what the Trustee considers to be the Fair Value of such
Mortgage Loan; provided that the applicable Special Servicer may, at its
own expense, revise any such Fair Value determination that is rejected by
the Trustee, it being understood and agreed that such revised Fair Value
determination will likewise be subject to confirmation in accordance with
this clause (vi).
Notwithstanding anything contained in clause (vi) of the preceding
paragraph to the contrary, if the Trustee is required to confirm or reject the
applicable Special Servicer's Fair Value determination as contemplated by such
clause (vi), the Trustee may (at its option and at the expense of the Trust
Fund) designate an Independent third party expert in real estate or commercial
mortgage loan matters with at least 5 years' experience in valuing or investing
in loans similar to the subject Specially Designated Defaulted Pooled Mortgage
Loan, that has been selected with reasonable care by the Trustee to confirm that
the applicable Special Servicer's Fair Value determination as contemplated by
such clause (vi) is consistent with or greater than what the Independent third
party considers to be the Fair Value of such Mortgage Loan. In the event that
the Trustee designates such a third party to make such determination, the
Trustee shall be entitled to rely upon such third party's determination. The
reasonable costs of all appraisals, inspection reports and broker opinions of
value, incurred by the Trustee or any such third party pursuant to this
paragraph or clause (vi) of the preceding paragraph shall be advanced by the
applicable Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances; provided that, the Trustee shall not so engage a third party
expert whose fees exceed a commercially reasonable sum as determined by the
Trustee. The applicable Special Servicer shall provide the Trustee with all
information that the applicable Special Servicer utilized in determining the
Fair Value that is being confirmed.
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Any party entitled to do so may exercise the Purchase Option with
respect to any Specially Designated Defaulted Pooled Mortgage Loan by providing
to the Certificate Administrator, the Trustee, the applicable Master Servicer
and the applicable Special Servicer:
(i) written notice of its intention to purchase such
Mortgage Loan at the Option Price; and
(ii) if such party is the assignee of the applicable
Special Servicer or the Majority Controlling Class Certificateholder(s),
evidence of its right to exercise such Purchase Option.
The actual purchase of such Specially Designated Defaulted Pooled Mortgage Loan
shall occur (by delivery of cash in the amount of the applicable Option Price to
the applicable Special Servicer for deposit in the applicable Master Servicer's
Collection Account) no later than ten days after the later of (i) such exercise
of the Purchase Option with respect to such Mortgage Loan and (ii) if
applicable, the confirmation of the applicable Special Servicer's Fair Value
determination with respect to such Mortgage Loan in accordance with clause (vi)
of the first paragraph of this Section 3.18(c) and/or in accordance with the
second paragraph of this Section 3.18(c). If any Person to which the Purchase
Option has been assigned as provided above exercises the Purchase Option but
fails to consummate the actual purchase of the applicable Specially Designated
Defaulted Pooled Mortgage Loan in accordance with the preceding sentence, then
the Purchase Option shall automatically thereupon be reinstated, revert to and
be exercisable by the Controlling Class Representative or the applicable Special
Servicer, as applicable.
Notwithstanding the Purchase Option provided for in this Section
3.18(c), the applicable Special Servicer shall proceed in respect of any
Specially Designated Defaulted Pooled Mortgage Loan in accordance with Section
3.09 and/or Section 3.20, without regard to such Purchase Option.
For the avoidance of doubt, the Purchase Option provided for in this
Section 3.18(c) will apply to each Non-Trust-Serviced Pooled Mortgage Loan. Any
purchaser will not be entitled or required to purchase any related Non-Pooled
Mortgage Loan included in the related Mortgage Loan Group.
(d) The applicable Special Servicer shall use its reasonable
efforts, consistent with the Servicing Standard, to solicit cash bids for each
Administered REO Property in such manner as will be reasonably likely to realize
a fair price (determined pursuant to Section 3.18(e) below) for any Administered
REO Property within a customary and normal time frame for the sale of comparable
properties (and, in any event, within the time period provided for by Section
3.16(a)). The applicable Special Servicer shall accept the first (and, if
multiple cash bids are received by a specified bid date, the highest) cash bid
received from any Person that constitutes a fair price (determined pursuant to
Section 3.18(e) below) for such Administered REO Property. If the applicable
Special Servicer reasonably believes that it will be unable to realize a fair
price (determined pursuant to Section 3.18(e) below) with respect to any
Administered REO Property within the time constraints imposed by Section
3.16(a), then the applicable Special Servicer shall, consistent with the
Servicing Standard, dispose of such REO Property upon such terms and conditions
as it shall deem necessary and desirable to maximize the recovery thereon under
the circumstances.
The applicable Special Servicer shall give the Certificate
Administrator, the Trustee, the applicable Master Servicer, the Controlling
Class Representative and, if the related Administered REO Property relates to a
Serviced Mortgage Loan Group, the related Serviced Mortgage Loan Group
Controlling Party not less than five (5) Business Days' prior written notice of
its intention to sell any Administered REO Property pursuant to this Section
3.18(d). No Pooled Mortgage Loan Seller, Certificateholder or any Affiliate of
any such Person shall be obligated to submit a bid 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.
(e) Whether any cash bid constitutes a fair price for any
Administered REO Property for purposes of Section 3.18(d), shall be determined
by the applicable Special Servicer or, if such cash bid is from the applicable
Special Servicer or any Affiliate of such Special Servicer, by the Trustee. In
determining whether any bid received from a Special
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Servicer or an Affiliate of such Special Servicer represents a fair price for
any REO Property, the Trustee shall be supplied with and shall be entitled to
rely on the most recent Appraisal in the related Servicing File conducted in
accordance with this Agreement within the preceding 12-month period (or, in the
absence of any such Appraisal or if there has been a material change at the
subject property since any such Appraisal, on a new Appraisal to be obtained by
the applicable 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 a Qualified Appraiser that is (i) selected by the applicable
Special Servicer if neither the applicable Special Servicer nor any Affiliate
thereof is bidding with respect to the subject Administered REO Property and
(ii) selected by the Trustee if either the applicable Special Servicer or any
Affiliate thereof is so bidding. Where any Pooled Mortgage Loan Seller, any
Certificateholder or any Affiliate of any such Person is among those bidding
with respect to any Administered REO Property, the applicable Special Servicer
shall require that all bids be submitted to it (or, if the applicable Special
Servicer or an Affiliate thereof is bidding, be submitted to the Trustee) in
writing and be accompanied by a refundable deposit of cash in an amount equal to
5% of the bid amount. In determining whether any bid from a Person other than
any Pooled Mortgage Loan Seller, any Certificateholder or any Affiliate of any
such Person constitutes a fair price for any Administered REO Property, the
applicable Special Servicer shall take into account the results of any Appraisal
or updated Appraisal that it or the applicable Master Servicer may have obtained
in accordance with this Agreement within the prior twelve (12) months, as well
as, among other factors, the occupancy level and physical condition of such REO
Property, the state of the then current local economy and commercial real estate
market where such REO Property is located and the obligation to dispose of such
REO Property within a customary and normal time frame for the sale of comparable
properties (and, in any event, within the time period specified in Section
3.16(a)). The Purchase Price for any Administered REO Property (which, in
connection with an Administered REO Property related to a Serviced Mortgage Loan
Group, shall be construed and calculated as if all the Mortgage Loans in such
Mortgage Loan Group together constitute a single "Pooled Mortgage Loan"
thereunder) shall in all cases be deemed a fair price. Notwithstanding the other
provisions of this Section 3.18, no cash bid from the applicable Special
Servicer or any Affiliate thereof shall constitute a fair price for any
Administered REO Property unless such bid is the highest cash bid received and
at least two Independent bids (not including the bid of the applicable Special
Servicer or any Affiliate) have been received. In the event the bid of the
applicable Special Servicer or any Affiliate thereof is the only bid received or
is the higher of only two bids received, then additional bids shall be
solicited. If an additional bid or bids, as the case may be, are received for
any Administered REO Property and the original bid of the applicable Special
Servicer or any Affiliate thereof is the highest of all bids received, then the
bid of the applicable Special Servicer or such Affiliate shall be accepted,
provided that the Trustee has otherwise determined, as provided above in this
Section 3.18(e), that such bid constitutes a fair price for the subject
Administered REO Property. Any bid by the applicable Special Servicer for any
Administered REO Property shall be unconditional; and, if accepted, the subject
Administered REO Property shall be transferred to the applicable Special
Servicer without recourse, representation or warranty other than customary
representations as to title given in connection with the sale of a real
property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the
applicable Special Servicer shall act on behalf of the Trustee in negotiating
with Independent third parties in connection with the sale of any Administered
REO Property and taking any other action necessary or appropriate in connection
with the sale of any Specially Designated Defaulted Pooled Mortgage Loan or
Administered REO Property, and the collection of all amounts payable in
connection therewith. In connection with the sale of any Administered REO
Property, the applicable Special Servicer may charge prospective bidders, and
may retain, fees that approximate the applicable Special Servicer's actual costs
in the preparation and delivery of information pertaining to such sales or
evaluating bids without obligation to deposit such amounts into a Collection
Account; provided, that if the applicable Special Servicer was previously
reimbursed for such costs from the Collection Account, then the applicable
Special Servicer must deposit such amounts into a Collection Account. Any sale
of a Specially Designated Defaulted Pooled Mortgage Loan or any Administered REO
Property shall be final and without recourse to the Trustee or the Trust, and if
such sale is consummated in accordance with the terms of this Agreement, neither
the applicable Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
applicable Special Servicer or the Trustee.
(g) Any sale of any Specially Designated Defaulted Pooled Mortgage
Loan or Administered REO Property shall be for cash only.
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(h) If any Person holds an option to purchase a Non-Trust-Serviced
Pooled Mortgage Loan in connection with a default thereunder pursuant to the
terms of the related Non-Trust Servicing Agreement and/or the related Mortgage
Loan Group Intercreditor Agreement, the applicable Master Servicer shall act on
behalf of the Trustee in coordinating with independent third parties seeking to
purchase a Non-Trust-Serviced Pooled Mortgage Loan by, and taking any other
action necessary or appropriate in connection with the sale of a
Non-Trust-Serviced Pooled Mortgage Loan to, any such purchase option holder with
respect thereto pursuant to the related Non-Trust Servicing Agreement and/or the
related Mortgage Loan Group Intercreditor Agreement, and the collection of all
amounts payable in connection therewith. Any such sale of a Non-Trust-Serviced
Pooled Mortgage Loan pursuant to the related Non-Trust Servicing Agreement
and/or the related Mortgage Loan Group Intercreditor Agreement shall be final
and without recourse to the Trustee or the Trust, and if such sale is
consummated in accordance with the terms of the related Non-Trust Servicing
Agreement and/or the related Mortgage Loan Group Intercreditor Agreement, none
of the applicable Master Servicer, the applicable Special Servicer or the
Trustee shall have any liability to any Certificateholder with respect to the
purchase price for such Non-Trust-Serviced Pooled Mortgage Loan accepted on
behalf of the Trust.
(i) If any Specially Designated Defaulted Pooled Mortgage Loan or
Administered REO Property is sold under this Section 3.18, or a
Non-Trust-Serviced Pooled Mortgage Loan is sold in accordance with this
Agreement and/or (if applicable) pursuant to the related Mortgage Loan Group
Intercreditor Agreement or the related Non-Trust Servicing Agreement, then the
purchase price shall be deposited into the applicable Master Servicer's
Collection Account, and the Trustee, upon receipt of written notice from the
applicable Master Servicer to the effect that such deposit has been made (based
upon, in the case of a Specially Designated Defaulted Pooled Mortgage Loan or
Administered REO Property, notification by the applicable Special Servicer to
such Master Servicer of the amount of the purchase price), shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest
ownership of such Mortgage Loan or REO Property in the Person who purchased such
Mortgage Loan or REO Property.
(j) If the applicable Pooled Mortgage Loan is part of a Serviced
Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari Passu
Companion Loans, then the applicable holder of the Purchase Option that
exercises the Purchase Option shall not be entitled or required to purchase any
such Serviced Non-Pooled Pari Passu Companion Loan in such Serviced Mortgage
Loan Group. If such a Serviced Non-Pooled Pari Passu Companion Loan is included
in an Other Securitization, the applicable Special Servicer shall determine the
Fair Value thereof and notify the applicable trustee and the applicable master
servicer under such Other Securitization (to the extent that such Special
Servicer has received notice of the identity of and contact information for such
applicable trustee and applicable master servicer under such Other
Securitization).
(k) Any purchaser of a Pooled Mortgage Loan that is included in a
Serviced Mortgage Loan Group, whether pursuant to this Section 3.18 or pursuant
to Section 2.03 or 9.01, will be subject to the related Mortgage Loan Group
Intercreditor Agreement, including any requirements thereof governing who may be
a holder of such Pooled Mortgage Loan. The applicable Special Servicer will
require, in connection with such a sale of the related Pooled Mortgage Loan,
that the purchaser assume in writing all of the rights and obligations of the
holder of such Pooled Mortgage Loan under the related Mortgage Loan Group
Intercreditor Agreement.
(l) The Purchase Option for any Specially Designated Defaulted
Pooled 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 the subject Pooled Mortgage Loan has not yet
occurred, shall terminate and be of no further force or effect) if and when any
one or more of the following events has occurred: (i) the applicable Special
Servicer has accepted a Fair Value bid, (ii) such Specially Designated Defaulted
Pooled Mortgage Loan has become a Corrected Mortgage Loan or has otherwise
ceased to be a Specially Designated Defaulted Pooled Mortgage Loan, (iii) the
related Mortgaged Property has become an REO Property, (iv) a Final Recovery
Determination has been made with respect to such Specially Designated Defaulted
Pooled Mortgage Loan, (v) solely in the case of a Specially Designated Defaulted
Pooled Mortgage Loan that is part of any Serviced Mortgage Loan Group, the
purchase option, if any, granted to the related Non-Pooled
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Subordinate Noteholder under the related Mortgage Loan Group Intercreditor
Agreement is exercised or (vi) such Specially Designated Defaulted Pooled
Mortgage Loan has otherwise been removed from the Trust.
SECTION 3.19. Additional Obligations of Master Servicers and Special
Servicer.
(a) Within sixty (60) days (or within such longer period as the
applicable Special Servicer is (as certified thereby to the Trustee in writing)
diligently using reasonable efforts to obtain the Appraisal referred to below)
after the earliest of the date on which any Serviced Pooled Mortgage Loan (i)
becomes a Modified Mortgage Loan following the occurrence of a Servicing
Transfer Event, (ii) becomes an REO Pooled Mortgage Loan, (iii) 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, (iv) the related
Borrower becomes the subject of bankruptcy, insolvency or similar proceedings
or, if such proceedings are involuntary, such proceedings remain undismissed for
sixty (60) days, or (v) any Monthly Payment becomes 60 days or more delinquent
and such event constitutes a Servicing Transfer Event (each such event, an
"Appraisal Trigger Event" and each such Serviced Pooled Mortgage Loan and any
related REO Pooled Mortgage Loan that is the subject of an Appraisal Trigger
Event, until it ceases to be such in accordance with the following paragraph, a
"Required Appraisal Loan"), the applicable Special Servicer shall obtain an
Appraisal of the related Mortgaged Property, unless an Appraisal thereof had
previously been received (or, if applicable, conducted) within the prior twelve
(12) months and the applicable Special Servicer has no knowledge of changed
circumstances that in the applicable Special Servicer's reasonable judgment
would materially affect the value of the Mortgaged Property. If such Appraisal
is obtained from a Qualified Appraiser, the cost thereof shall be covered by,
and be reimbursable as, a Servicing Advance, such Advance to be made at the
direction of the applicable Special Servicer when the Appraisal is received by
the applicable Special Servicer. Promptly following the receipt of, and based
upon, such Appraisal, the applicable Special Servicer, in consultation with the
Controlling Class Representative (other than in connection with a Serviced
Mortgage Loan Group that includes one or more Non-Pooled Subordinate Loans and
has an associated Serviced Mortgage Loan Group Controlling Party) or the related
Serviced Mortgage Loan Group Controlling Party (in connection with a Serviced
Mortgage Loan Group that includes one or more Non-Pooled Subordinate Loans and
has an associated Serviced Mortgage Loan Group Controlling Party), shall
determine and report to the Certificate Administrator, the Trustee and the
applicable Master Servicer the then applicable Appraisal Reduction Amount, if
any, with respect to the subject Required Appraisal Loan. For purposes of this
Section 3.19(a), an Appraisal may, in the case of any Serviced Pooled Mortgage
Loan with an outstanding principal balance of less than $2,000,000 only, consist
solely of an internal valuation performed by the applicable Special Servicer. In
connection with a Mortgaged Property related to any Serviced Mortgage Loan
Group, the applicable Special Servicer shall also determine and report to the
Trustee, the applicable Master Servicer, the Controlling Class Representative
and the applicable Serviced Non-Pooled Mortgage Loan Noteholder(s) the Appraisal
Reduction Amount, if any, with respect to the entire such Serviced Mortgage Loan
Group (calculated, for purposes of this sentence, as if it were a single
Serviced Pooled Mortgage Loan).
A Serviced Pooled Mortgage Loan shall cease to be a Required
Appraisal Loan if and when, following the occurrence of the most recent
Appraisal Trigger Event, any and all Servicing Transfer Events with respect to
such Mortgage Loan have ceased to exist and no other Appraisal Trigger Event has
occurred with respect thereto during the preceding ninety (90) days.
For so long as any Serviced Pooled Mortgage Loan or related REO
Pooled Mortgage Loan remains a Required Appraisal Loan, the applicable Special
Servicer shall, within 30 days of each anniversary of such Mortgage Loan's
having become a Required Appraisal Loan, obtain (or, if such Required Appraisal
Loan has a Stated Principal Balance of $2,000,000 or less, at the applicable
Special Servicer's option, conduct) an update of the prior Appraisal. If such
update is obtained from a Qualified Appraiser, the cost thereof shall be covered
by, and be reimbursable as, a Servicing Advance, such Advance to be made at the
direction of the applicable Special Servicer when the Appraisal is received by
the applicable Special Servicer. Promptly following the receipt of, and based
upon, such update, the applicable Special Servicer shall redetermine, in
consultation with the Controlling Class Representative (other than in connection
with a Serviced Mortgage Loan Group that includes one or more Non-Pooled
Subordinate Loans) or the related Non-Pooled Subordinate Noteholder (in
connection with a Serviced Mortgage Loan Group that includes one or
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more Non-Pooled Subordinate Loans), and report to the Certificate Administrator,
the Trustee and the applicable Master Servicer the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal Loan.
In connection with a Mortgaged Property related to any Serviced Mortgage Loan
Group, promptly following the receipt of, and based upon, such update, the
applicable Special Servicer shall also redetermine, and report to the Trustee,
the applicable Master Servicer, the Controlling Class Representative and related
Serviced Non-Pooled Mortgage Loan Noteholder(s) the Appraisal Reduction Amount,
if any, with respect to the entire such Serviced Mortgage Loan Group
(calculated, for purposes of this sentence, as if it were a single Serviced
Pooled Mortgage Loan).
The Controlling Class Representative shall have the right at any
time, but not more frequently than once in any six month period, to require that
the applicable Special Servicer obtain a new Appraisal of the subject Mortgaged
Property in accordance with MAI standards, at the expense of the Controlling
Class Certificateholders. Upon receipt of any such Appraisal, the applicable
Special Servicer shall deliver a copy thereof to the Trustee, the applicable
Master Servicer and the Controlling Class Representative. Promptly following the
receipt of, and based upon, such Appraisal, the applicable Special Servicer
shall redetermine and report to the Trustee, the Master Servicer and the
Controlling Class Representative the then applicable Appraisal Reduction Amount,
if any, with respect to the subject Required Appraisal Mortgage Loan.
(b) Notwithstanding anything to the contrary contained in any
other Section of this Agreement, the applicable Special Servicer shall notify
the applicable Master Servicer whenever a Servicing Advance is required to be
made with respect to any Specially Serviced Mortgage Loan or Administered REO
Property, and, such Master Servicer shall (subject to Section 3.11(h)) make such
Servicing Advance; provided that the applicable Special Servicer shall make any
Servicing Advance on a Specially Serviced Mortgage Loan or Administered REO
Property that constitutes an Emergency Advance. Each such notice and request
shall be made, in writing, not less than five (5) Business Days (and, to the
extent reasonably practicable, at least ten (10) Business Days) in advance of
the date on which the subject Servicing Advance is to be made and shall be
accompanied by such information and documentation regarding the subject
Servicing Advance as the applicable Master Servicer may reasonably request;
provided, however, that the applicable Special Servicer shall not be entitled to
make such a request more frequently than once per calendar month (although such
request may relate to more than one Servicing Advance). Each Master Servicer
shall have the obligation to make any such Servicing Advance (other than a
Nonrecoverable Servicing Advance) that it is so requested by the applicable
Special Servicer to make (as described above) not later than the date on which
the subject Servicing Advance is to be made, but in no event shall it be
required to make any Servicing Advance on a date that is earlier than five
Business Days following such Master Servicer's receipt of such request. If the
request is timely and properly made, the requesting Special Servicer shall be
relieved of any obligations with respect to a Servicing Advance that it so
requests the applicable Master Servicer to make with respect to any Specially
Serviced Mortgage Loan or Administered REO Property (regardless of whether or
not such Master Servicer shall make such Servicing Advance). Each Master
Servicer shall be entitled to reimbursement for any Servicing Advance made by it
at the direction of the applicable Special Servicer, together with Advance
Interest in accordance with Sections 3.05(a) and 3.11(g), at the same time, in
the same manner and to the same extent as such Master Servicer is entitled with
respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b), a
Master Servicer shall not be required to reimburse the applicable Special
Servicer for, or to make at the direction of the applicable Special Servicer,
any Servicing Advance if such Master Servicer determines in its reasonable
judgment that such Servicing Advance, although not characterized by the
requesting Special Servicer as a Nonrecoverable Servicing Advance, is in fact a
Nonrecoverable Servicing Advance. Such Master Servicer shall notify the
applicable Special Servicer in writing of such determination and, if applicable,
such Nonrecoverable Servicing Advance shall be reimbursed to the applicable
Special Servicer pursuant to Section 3.05(a).
(c) Each Master Servicer shall deliver to the Certificate
Administrator for deposit in the Distribution Account by 1:00 p.m. (New York
City time) on each Master Servicer Remittance Date, without any right of
reimbursement therefor, a cash payment (a "Compensating Interest Payment") in an
amount equal to the aggregate amount of Prepayment Interest Shortfalls incurred
in connection with Principal Prepayments received during the most
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recently ended Collection Period with respect to Serviced Pooled Mortgage Loans
as to which such Master Servicer is the applicable Master Servicer, to the
extent such Prepayment Interest Shortfalls arose from (A) voluntary Principal
Prepayments made by a Borrower on such Serviced Pooled Mortgage Loans that are
not Specially Serviced Mortgage Loans or defaulted Mortgage Loans or (B) to the
extent that such Master Servicer did not apply the proceeds thereof in
accordance with the terms of the related Mortgage Loan Documents, involuntary
principal prepayments made on such Serviced Pooled Mortgage Loans that are not
Specially Serviced Mortgage Loans or defaulted Mortgage Loans.
The rights of the Certificateholders to offsets of any Prepayment
Interest Shortfalls shall not be cumulative from Collection Period to Collection
Period.
(d) With respect to each Serviced Pooled Mortgage Loan that is to
be defeased in accordance with its terms, the applicable Master Servicer shall
execute and deliver to each Rating Agency a certification substantially in the
form attached hereto as Exhibit O and, further, shall, to the extent permitted
by the terms of such Mortgage Loan, require the related Borrower (i) to provide
replacement collateral consisting of U.S. government securities within the
meaning of Section 2(a)(16) of the Investment Company Act in an amount
sufficient to make all scheduled payments under the subject Serviced Pooled
Mortgage Loan (or defeased portion thereof) when due (and assuming, in the case
of an ARD Mortgage Loan, to the extent consistent with the related Mortgage Loan
Documents, that the subject Serviced Pooled Mortgage Loan matures on its
Anticipated Repayment Date), (ii) to deliver a certificate from an independent
certified public accounting firm certifying that the replacement collateral is
sufficient to make such payments, (iii) at the option of the applicable Master
Servicer, to designate a single purpose entity (which may be (but is not
required to be) a subsidiary of the applicable Master Servicer established for
the purpose of assuming all defeased Serviced Mortgage Loans) to assume the
subject Serviced Pooled Mortgage Loan (or defeased portion thereof) and own the
defeasance collateral, (iv) to implement such defeasance only after the second
anniversary of the Closing Date, (v) to provide an Opinion of Counsel that the
Trustee has a perfected, first priority security interest in the new collateral,
and (vi) in the case of a partial defeasance of the subject Serviced Pooled
Mortgage Loan, to defease a principal amount equal to at least 125% of the
allocated loan amount for the Mortgaged Property or Properties to be released;
provided that, if (A) the subject Serviced Pooled Mortgage Loan has a Cut-off
Date Principal Balance greater than or equal to $35,000,000 or an outstanding
principal balance greater than or equal to 2% of the aggregate Stated Principal
Balance of the Mortgage Pool or is one of the ten largest Pooled Mortgage Loans
then in the Trust Fund, (B) the terms of the subject Serviced Pooled Mortgage
Loan do not permit the applicable Master Servicer to impose the foregoing
requirements and the applicable Master Servicer does not satisfy such
requirements on its own or (C) the applicable Master Servicer is unable to
execute and deliver the certification attached hereto as Exhibit O in connection
with the subject defeasance, then the applicable Master Servicer shall so notify
the Rating Agencies, the Controlling Class Representative and, if any Mortgage
Loan in a Serviced Mortgage Loan Group is involved, the related Non-Pooled
Mortgage Loan Noteholder(s) and, so long as such a requirement would not violate
applicable law or the Servicing Standard, obtain a written confirmation from
each Rating Agency for the Rated Certificates that such defeasance will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and, in the case of a defeasance with
respect to any Serviced Mortgage Loan Group that includes one or more Serviced
Non-Pooled Pari Passu Companion Loans, also a written confirmation from each
applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan
Securities that such defeasance will not result in an Adverse Rating Event with
respect to any class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such Rating Agency. Subject to the related Mortgage Loan Documents and
applicable law, the applicable Master Servicer shall not permit a defeasance
unless (i) the subject Serviced Mortgage Loan requires the Borrower to pay (or
the Borrower in fact pays) all Rating Agency fees associated with defeasance (if
confirmation of the absence of an Adverse Rating Event is a specific condition
precedent thereto) and all expenses associated with defeasance or other
arrangements for payment of such costs are made at no expense to the Trust Fund
or the applicable Master Servicer (provided, however, that in no event shall
such proposed other arrangements result in any liability to the Trust Fund
including any indemnification of the applicable Master Servicer or the
applicable Special Servicer which may result in legal expenses to the Trust
Fund), and (ii) the Borrower is required to provide all Opinions of Counsel,
including Opinions of Counsel that the defeasance will not cause an Adverse
REMIC Event or an Adverse Grantor Trust Event and that the related Mortgage Loan
Documents are fully enforceable in accordance with their terms
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(subject to bankruptcy, insolvency and similar standard exceptions), and any
applicable rating confirmations with respect to the absence of an Adverse Rating
Event.
(e) In connection with the Serviced Mortgage Loans for which the
related Borrower was required to escrow funds or post a letter of credit related
to obtaining performance objectives, such as targeted debt service coverage
levels or leasing criteria with respect to the Mortgaged Property as a whole or
particular portions thereof, if the mortgagee has the discretion to retain the
cash or Letter of Credit (or the proceeds of such letters of credit) as
additional collateral if the relevant conditions to release are not satisfied,
then the applicable Master Servicer shall hold such escrows or letters of credit
(or the proceeds of such Letters of Credit) as additional collateral and not use
such funds to reduce the principal balance of the related Mortgage Loan (to the
extent the related Mortgage Loan Documents allow such action), unless holding
such funds would otherwise be inconsistent with the Servicing Standard.
(f) For all purposes hereunder, the parties hereto shall treat the
Pooled Mortgage Loan secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as "8119-8133 Xxxxxx Street" (the "8119-8133 Xxxxxx
Street Pooled Mortgage Loan") as accruing interest at a rate of 6.50432% per
annum (and the REMIC 1 Remittance Rate for the related REMIC I Regular Interest
shall be determined as if the "Mortgage Rate" were equal to such rate of
6.50432% per annum), without regard to any excess of the interest accrued on
such Pooled Mortgage Loan at a rate per annum of 6.54000% (the applicable
interest rate if a holdback is applied to reduce the balance of the Pooled
Mortgage Loan as described in the related Mortgage Loan Documents) over interest
accrued and payable on such Pooled Mortgage Loan at a rate of 6.50432% per annum
(any such excess, "8119-8133 Xxxxxx Street Additional Interest"). Such
requirement will apply for purposes of determining (among other things): the
amount of any P&I Advance; the Monthly Payment or Assumed Monthly Payment; the
Net Mortgage Rate; the amount of any Appraisal Reduction Amount; the amount of
any Interest Reserve Amount; the amount of any Prepayment Interest Excess; the
amount of any Prepayment Interest Shortfall; whether an Appraisal Trigger Event
has occurred; whether a Servicing Transfer Event has occurred; and the amount of
accrued interest considered in the calculation of any Realized Loss. Neither the
applicable Master Servicer nor the applicable Special Servicer shall take any
enforcement actions with respect to the payment of any 0000-0000 Xxxxxx Xxxxxx
Additional Interest (other than the making of requests for its collection);
provided, however, the applicable Special Servicer may take such enforcement
actions with respect to the payment of any 0000-0000 Xxxxxx Xxxxxx Additional
Interest only if (i) the taking of an enforcement action with respect to the
payment of other amounts due under the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage
Loan is, in the reasonable judgment of the applicable Special Servicer, and
without regard to such 0000-0000 Xxxxxx Xxxxxx Additional Interest, also
necessary, appropriate and consistent with the Servicing Standard and otherwise
permitted under this Agreement, or (ii) (a) all other amounts due under the
0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan have been paid, (b) the payment of
such 0000-0000 Xxxxxx Xxxxxx Additional Interest has not been forgiven in
accordance with Section 3.20, (c) in the reasonable judgment of the applicable
Special Servicer, exercised in accordance with the Servicing Standard, the
Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Advance and (d) the applicable Pooled
Mortgage Loan Seller has consented thereto. The Pooled Mortgage Loan Seller for
the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan will be entitled to any
payments or collections on or in respect of any 0000-0000 Xxxxxx Xxxxxx
Additional Interest and any 0000-0000 Xxxxxx Xxxxxx Additional Interest and any
collections thereof will not constitute an asset of any REMIC Pool or any
Grantor Trust.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The applicable Special Servicer (in the case of a Serviced
Mortgage Loan that is a Specially Serviced Mortgage Loan) or the applicable
Master Servicer (in the case of a Performing Serviced Mortgage Loan) may
(consistent with the Servicing Standard) agree to any modification, waiver or
amendment of any term of, extend the maturity of, defer or forgive interest
(including Default Interest and Post-ARD Additional Interest) on and principal
of, defer or forgive late payment charges, Prepayment Premiums and Yield
Maintenance Charges on, permit the release, addition or substitution of
collateral securing, and/or permit the release, addition or substitution of the
Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is
responsible, subject, however, to Sections 3.08, 3.24, 3.27, 3.28, 3.29 and/or
3.30, as applicable, and, in the case of each Serviced Mortgage Loan in a
Serviced Mortgage Loan Group, to
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the rights of third parties set forth in the related Mortgage Loan Group
Intercreditor Agreement, and, further to each of the following limitations,
conditions and restrictions:
(i) other than as expressly set forth in Section 3.02
(with respect to Post-ARD Additional Interest and Default Charges),
Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses
and transfers of interests in Borrowers), Section 3.19(e) (with respect to
defeasances), Section 3.19(f) (with respect to 0000-0000 Xxxxxx Xxxxxx
Additional Interest), Section 3.20(e) (with respect to Post-ARD Additional
Interest) and Section 3.20(f) (with respect to various routine matters),
the applicable Master Servicer shall not agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Serviced Mortgage Loan, that
would affect the amount or timing of any related payment of principal,
interest or other amount payable under such Mortgage Loan or materially
and adversely affect the security for such Mortgage Loan, unless (solely
in the case of a Performing Serviced Mortgage Loan) such Master Servicer
has obtained the consent of the applicable Special Servicer (it being
understood and agreed that (A) the applicable Master Servicer shall
promptly provide the applicable Special Servicer with notice of any
Borrower request for such modification, waiver or amendment, the
applicable Master Servicer's recommendations and analysis, and with all
information reasonably available to the applicable Master Servicer that
the applicable Special Servicer may reasonably request in order to
withhold or grant any such consent, (B) the applicable Special Servicer
shall decide whether to withhold or grant such consent in accordance with
the Servicing Standard (and subject to Sections 3.24, 3.27, 3.28, 3.29
and/or 3.30, as applicable), (C) except with respect to any Nationwide
Pooled Mortgage Loan, any PCFII Pooled Mortgage Loan, if any such consent
has not been expressly denied within ten Business Days of the Special
Servicer's receipt from the applicable Master Servicer of such Master
Servicer's recommendations and analysis and all information reasonably
requested thereby and reasonably available to the applicable Master
Servicer in order to make an informed decision, such consent shall be
deemed to have been granted and (D) solely with respect to any Nationwide
Pooled Mortgage Loan or any PCFII Pooled Mortgage Loan, any such consent
shall be deemed to have been granted if such consent has not been
expressly denied either (x) within ten Business Days of the applicable
Special Servicer's initial receipt of the applicable Master Servicer's
recommendations and analysis, if such Special Servicer has not requested
additional information as described above on or before the date that is
four Business Days following such Special Servicer's receipt of the
applicable Master Servicer's recommendations and analysis, or (y) within
six Business Days following such Special Servicer's receipt of the
additional information requested by such Special Servicer as described
above, if such Special Servicer has requested such additional information
on or before the date that is four Business Days following such Special
Servicer's initial receipt of the applicable Master Servicer's
recommendations and analysis);
(ii) other than as provided in Sections 3.02, 3.08, 3.20(e)
and 3.20(f), the applicable Special Servicer shall not agree to (or, in
the case of a Performing Serviced Mortgage Loan, consent to the applicable
Master Servicer's agreeing to) any modification, waiver or amendment of
any term of, or take (or, in the case of a Performing Serviced Mortgage
Loan, consent to the applicable Master Servicer's taking) any of the other
acts referenced in this Section 3.20(a) with respect to, any Serviced
Mortgage Loan that would affect the amount or timing of any related
payment of principal, interest or other amount payable thereunder or, in
the reasonable judgment of the applicable Special Servicer, would
materially impair the security for such Mortgage Loan, unless a material
default on such Mortgage Loan has occurred or, in the reasonable judgment
of the applicable Special Servicer, a default in respect of payment on
such Mortgage Loan is reasonably foreseeable, and such modification,
waiver, amendment or other action is reasonably likely to produce an equal
or a greater recovery to Certificateholders (and, in the case of a
Serviced Mortgage Loan Group, the related Serviced Non-Pooled Mortgage
Loan Noteholder(s)), as a collective whole, on a net present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders and, in the case of a Serviced
Mortgage Loan Group, the relevant Serviced Non-Pooled Mortgage Loan
Noteholder(s) to be done at a rate determined by the Special Servicer but
in no event less than the related Net Mortgage Rate (or, in the case of a
Serviced Mortgage Loan Group, in no event less than the weighted average
of the Net Mortgage Rates for the Mortgage Loans in such Mortgage Loan
Group)), than would liquidation; provided that (A) any modification,
extension, waiver or
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amendment of the payment terms of the related Serviced Mortgage Loan Group
shall be structured in a manner so as to be consistent with the allocation
and payment priorities set forth in the related Mortgage Loan Documents,
including the related Mortgage Loan Group Intercreditor Agreement, it
being the intention that neither the Trust as holder of the related Pooled
Mortgage Loan nor any Serviced Non-Pooled Mortgage Loan Noteholder shall
gain a priority over any other with respect to any payment, which priority
is not, as of the date of the related Mortgage Loan Intercreditor
Agreement, reflected in the related Mortgage Loan Documents, including the
related Mortgage Loan Group Intercreditor Agreement; and (B) to the extent
consistent with the Servicing Standard (taking into account the extent to
which the related Serviced Non-Pooled Subordinate Loan, if any, is junior
to a Serviced Pooled Mortgage Loan), (I) no waiver, reduction or deferral
of any particular amounts due on the related Serviced Pooled Mortgage Loan
shall be effected prior to the waiver, reduction or deferral of the entire
corresponding item in respect of the related Serviced Non-Pooled
Subordinate Loan, (II) no reduction of the Mortgage Rate (exclusive, if
applicable, of any portion thereof that represents a Post-ARD Additional
Interest Rate) of any such Serviced Pooled Mortgage Loan shall be effected
prior to the reduction of the Mortgage Rate (exclusive, if applicable, of
any portion thereof that represents a Post-ARD Additional Interest Rate)
of the related Serviced Non-Pooled Subordinate Loans, and (III) no
reduction of any Post-ARD Additional Interest Rate applicable to any such
Serviced Pooled Mortgage Loan shall be effected prior to the reduction of
any Post-ARD Additional Interest Rate applicable to the related Serviced
Non-Pooled Subordinate Loan;
(iii) the applicable Special Servicer shall not extend (or,
in the case of a Performing Serviced Mortgage Loan, consent to the
applicable Master Servicer's extending) the date on which any Balloon
Payment is scheduled to be due on any Serviced Mortgage Loan to a date
beyond the earliest of (A) five years prior to the Rated Final
Distribution Date, (B) if such Serviced Mortgage Loan is secured by a
Mortgage solely or primarily on the related Borrower's leasehold interest
in the related Mortgaged Property, 20 years (or, to the extent consistent
with the Servicing Standard, giving due consideration to the remaining
term of the Ground Lease, ten years) prior to the end of the then current
term of the related Ground Lease (plus any unilateral options to extend),
and (C) if such Serviced Mortgage Loan is covered by an Environmental
Insurance Policy, for more than five years later than such Serviced
Mortgage Loan's Stated Maturity Date, unless either (I) the applicable
Special Servicer shall have first determined in its reasonable judgment,
based upon a Phase I Environmental Assessment (and any additional
environmental testing that the applicable Special Servicer deems necessary
and prudent) conducted by an Independent Person who regularly conducts
Phase I Environmental Assessments, and at the expense of the Borrower,
that there are no circumstances or conditions present at the related
Mortgaged Property for which investigation, testing, monitoring,
containment, clean-up or remediation would be required under any then
applicable environmental laws or regulations or (II) the Borrower obtains
(at its expense) an extension of such policy on the same terms and
conditions for a period ending not earlier than five years following the
extended maturity date of such Serviced Mortgage Loan;
(iv) neither the applicable Master Servicer nor the
applicable Special Servicer shall make or permit any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Serviced Mortgage Loan that
would result in an Adverse REMIC Event with respect to any REMIC Pool or
an Adverse Grantor Trust Event with respect to any Grantor Trust Pool (the
Master Servicers and the applicable Special Servicer shall not be liable
for decisions made under this subsection which were made in good faith and
each of them may rely on Opinions of Counsel in making such decisions);
(v) subject to applicable law, the related Mortgage Loan
Documents and the Servicing Standard, neither the applicable Master
Servicer nor the applicable Special Servicer shall permit any
modification, waiver or amendment of any term of any Performing Serviced
Mortgage Loan unless all related fees and expenses are paid by the
Borrower;
(vi) the applicable Special Servicer shall not permit (or,
in the case of a Performing Serviced Mortgage Loan, consent to the
applicable Master Servicer's permitting) any Borrower to add or substitute
any real estate collateral for its Serviced Mortgage Loan unless the
applicable Special Servicer shall have first (A)
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determined in its reasonable judgment, based upon a Phase I Environmental
Assessment (and any additional environmental testing that the applicable
Special Servicer deems necessary and prudent) conducted by an Independent
Person who regularly conducts Phase I Environmental Assessments, at the
expense of the related Borrower, that such additional or substitute
collateral is in compliance with applicable environmental laws and
regulations and that there are no circumstances or conditions present with
respect to such new collateral relating to the use, management or disposal
of any Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation would be required under any then
applicable environmental laws or regulations and (B) received, at the
expense of the related Borrower, written confirmation from each Rating
Agency for the Rated Certificates that such addition or substitution of
collateral will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency and, in the case
of an addition or substitution of collateral with respect to any Serviced
Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari
Passu Companion Loans, also a written confirmation from each applicable
Rating Agency for the related Non-Pooled Pari Passu Companion Loan
Securities that such addition or substitution of collateral will not
result in an Adverse Rating Event with respect to any class of such
Non-Pooled Pari Passu Companion Loan Securities rated by such Rating
Agency; and
(vii) the applicable Special Servicer shall not release (or,
in the case of a Performing Serviced Mortgage Loan, consent to the
applicable Master Servicer's releasing), including in connection with a
substitution contemplated by clause (vi) above, any real property
collateral securing an outstanding Serviced Mortgage Loan, except as
provided in Section 3.09(d), except as specifically required under the
related Mortgage Loan Documents or except where a Mortgage Loan (or, in
the case of a Cross-Collateralized Group, where such entire
Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) the Rating Agencies have been notified in writing, (B)
either (1) the use of the collateral to be released will not, in the
reasonable judgment of the applicable Special Servicer, materially and
adversely affect the net operating income being generated by or the use of
the related Mortgaged Property, or (2) there is a corresponding principal
pay down of such Mortgage Loan in an amount at least equal to the
appraised value of the collateral to be released (or substitute real
estate collateral with an appraised value at least equal to that of the
collateral to be released, is delivered), (C) the loan-to-value ratio of
such Mortgage Loan after such release will be, in the reasonable judgment
of the applicable Special Servicer, no greater than that existing prior to
such release and (D) if the collateral to be released has an appraised
value in excess of $3,000,000, either (i) other than in the case of a
release of collateral with respect to a Serviced Mortgage Loan Group that
includes one or more Serviced Non-Pooled Pari Passu Companion Loans, such
release would not, in and of itself, result in an Adverse Rating Event
with respect to any Class of Rated Certificates, as confirmed in writing
to the Trustee by each Rating Agency, or (ii) in the case of a release of
collateral with respect to a Serviced Mortgage Loan Group that includes
one or more Serviced Non-Pooled Pari Passu Companion Loans, such release
would not, in and of itself, result in an Adverse Rating Event with
respect to any Class of Rated Certificates and also would not, in and of
itself, result in an Adverse Rating Event with respect to any class of
related Non-Pooled Pari Passu Companion Loan Securities, in each case as
confirmed in writing to the Trustee by each applicable Rating Agency;
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Serviced Mortgage Loan that either occurs automatically, or results from the
exercise of a unilateral option within the meaning of Treasury Regulations
Section 1.1001-3(c)(2)(iii) by the related Borrower, in any event under the
terms of such Mortgage Loan in effect on the Closing Date (or, in the case of a
Replacement Pooled Mortgage Loan, on the related date of substitution); and
provided, further, that, notwithstanding clauses (i) through (vii) above,
neither the applicable Master Servicer nor the applicable Special Servicer shall
be required to oppose the confirmation of a plan in any bankruptcy or similar
proceeding involving a Borrower under a Serviced Mortgage Loan if, in its
reasonable judgment, such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar.
(b) If any payment of interest on a Serviced Pooled Mortgage Loan
is deferred pursuant to Section 3.20(a), then such payment of interest shall
not, for purposes of calculating monthly distributions and reporting
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information to Certificateholders, be added to the unpaid principal balance or
Stated Principal Balance of the related Pooled Mortgage Loan, notwithstanding
that the terms of such Pooled Mortgage Loan so permit or that such interest may
actually be capitalized; provided, however, that this sentence shall not limit
the rights of the applicable Master Servicer or the applicable Special Servicer
on behalf of the Trust to enforce any obligations of the related Borrower under
such Pooled Mortgage Loan.
(c) Each of the applicable Master Servicer and the applicable
Special Servicer may, as a condition to its granting any request by a Borrower
under a Serviced Mortgage Loan for consent, modification, waiver or indulgence
or any other matter or thing, the granting of which is within such Master
Servicer's or such Special Servicer's, as the case may be, discretion pursuant
to the terms of the related Mortgage Loan Documents and is permitted by the
terms of this Agreement, require that such Borrower pay to it a reasonable or
customary fee for the additional services performed in connection with such
request, together with any related costs and expenses incurred by it; provided
that the charging of such fees would not otherwise constitute a "significant
modification" of the subject Mortgage Loan pursuant to Treasury Regulations
Section 1.860G-2(b). All such fees collected by the applicable Master Servicer
and/or the applicable Special Servicer with respect to any Serviced Mortgage
Loan shall be allocable between such parties, as Additional Master Servicing
Compensation and Additional Special Servicing Compensation, respectively, as
provided in Section 3.11.
(d) All modifications, amendments, material waivers and other
material actions entered into or taken in respect of the Serviced Mortgage Loans
pursuant to this Section 3.20 (other than waivers of Default Charges for which
the consent of the applicable Special Servicer is required under Section 3.02),
and all material consents, shall be in writing. Each of the applicable Special
Servicer and the applicable Master Servicer shall notify the other such party,
each Rating Agency, the Certificate Administrator, the Trustee, the Controlling
Class Representative and, if the Serviced Mortgage Loan is included in a
Serviced Mortgage Loan Group, the related Serviced Non-Pooled Mortgage Loan
Noteholder(s), in writing, of any material modification, waiver, amendment or
other action entered into or taken thereby in respect of any Serviced Mortgage
Loan pursuant to this Section 3.20 (other than waivers of Default Charges for
which the consent of the applicable Special Servicer is required under Section
3.02) and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File (with a copy to the other
such party and, if the Serviced Mortgage Loan is included in a Serviced Mortgage
Loan Group, the applicable Serviced Non-Pooled Mortgage Loan Noteholders), an
original counterpart of the agreement relating to such modification, waiver,
amendment or other action agreed to or taken by it, promptly (and in any event
within ten Business Days) following the execution thereof. In addition,
following the execution of any modification, waiver or amendment agreed to by
the applicable Special Servicer or the applicable Master Servicer, as
appropriate, pursuant to Section 3.20(a) above, the applicable Special Servicer
or the applicable Master Servicer, as applicable, shall deliver to the other
such party, the Certificate Administrator, the Trustee, the Rating Agencies and,
if affected, each applicable Serviced Non-Pooled Mortgage Loan Noteholder an
Officer's Certificate certifying that all of the requirements of Section 3.20(a)
have been met and, in the case of the applicable Special Servicer, setting forth
in reasonable detail the basis of the determination made by it pursuant to
Section 3.20(a)(ii); provided that, if such modification, waiver or amendment
involves an extension of the maturity of any Serviced Mortgage Loan, such
Officer's Certificate shall be so delivered before the modification, waiver or
amendment is agreed to.
(e) With respect to any Performing Serviced Mortgage Loan that is
an ARD Mortgage Loan after its Anticipated Repayment Date, the applicable Master
Servicer shall be permitted, with the consent of the applicable Special Servicer
(which consent shall be deemed granted if not denied in writing within ten
Business Days after receipt of the applicable Master Servicer's request
therefor), to waive (such waiver to be in writing addressed to the related
Borrower, with a copy to the Trustee) all or any portion of the accrued Post-ARD
Additional Interest in respect of such ARD Mortgage Loan if (i) the related
Borrower has requested the right to prepay such ARD Mortgage Loan in full
together with all payments required by the related Mortgage Loan Documents in
connection with such prepayment except for such accrued Post-ARD Additional
Interest, and (ii) the applicable Master Servicer has determined, in its
reasonable judgment, that waiving such Post-ARD Additional Interest is in
accordance with the Servicing Standard. The applicable Master Servicer shall
prepare all documents necessary and appropriate to effect any such waiver and
shall coordinate with the related Borrower for the execution and delivery of
such documents.
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(f) Notwithstanding anything in this Section 3.20 or in Section
3.08, Section 3.24, Section 3.27 and/or Section 3.29 to the contrary, the
applicable Master Servicer shall not be required to seek the consent of, or
provide prior notice to, the applicable Special Servicer, any Certificateholder,
the applicable Serviced Mortgage Loan Group Controlling Party or any Serviced
Non-Pooled Pari Passu Companion Loan Noteholder or obtain any confirmation from
the Rating Agencies with respect to the absence of an Adverse Rating Event
(unless required by the Mortgage Loan Documents) in order to approve the
following modifications, waivers or amendments of the Performing Serviced
Mortgage Loans: (i) waivers of minor covenant defaults (other than financial
covenants), including late financial statements; (ii) releases of non-material
parcels of a Mortgaged Property (including, without limitation, any such
releases (A) to which the related Mortgage Loan Documents expressly require the
mortgagee thereunder to make such releases upon the satisfaction of certain
conditions (and the conditions to the release that are set forth in the related
Mortgage Loan Documents do not include the approval of the lender or the
exercise of lender discretion (other than confirming the satisfaction of the
other conditions to the release set forth in the related Mortgage Loan Documents
that do not include any other approval or exercise)) and such release is made as
required by the related Mortgage Loan Documents or (B) that are related to any
condemnation action that is pending, or threatened in writing, and would affect
a non-material portion of the Mortgaged Property); (iii) grants of easements or
rights of way that do not materially affect the use or value of a Mortgaged
Property or the Borrower's ability to make any payments with respect to the
related Serviced Mortgage Loan; (iv) granting other routine approvals, including
the granting of subordination and nondisturbance and attornment agreements and
consents involving routine leasing activities that affect less than the greater
of (a) 30% of the net rentable area of the Mortgaged Property or (b) 30,000
square feet of the Mortgaged Property (but the applicable Master Servicer shall
deliver to the Controlling Class Representative copies of any such approvals
granted by such Master Servicer); (v) approval of annual budgets to operate the
Mortgaged Property; (vi) grants of any waiver or consent that the applicable
Master Servicer determines (in accordance with the Servicing Standard) to be
immaterial; (vii) approving a change of the property manager at the request of
the related Borrower (provided that the related Mortgaged Property is not a
hospitality property and either (A) the change occurs in connection with an
assignment and assumption approved in accordance with Section 3.08 or (B) the
successor property manager is not affiliated with the Borrower and is a
nationally or regionally recognized manager of similar properties and the
related Serviced Pooled Mortgage Loan does not have a Stated Principal Balance
that is greater than or equal to $8,500,000 or 2% of the then aggregate Stated
Principal Balance of the Mortgage Pool, whichever is less, (viii) any releases
or reductions of or withdrawals from (as applicable) any Letters of Credit,
Reserve Funds or other Additional Collateral with respect to any Mortgaged
Property securing a Serviced Mortgage Loan where the release or reduction of or
withdrawal from (as applicable) the applicable Letter of Credit, Reserve Funds
or Additional Collateral is not conditioned on obtaining the consent of the
lender and the conditions to the release, reduction or withdrawal (as
applicable) that are set forth in the related Mortgage Loan Documents do not
include the approval of the lender or the exercise of lender discretion (other
than confirming the satisfaction of the other conditions to the transaction set
forth in the related Mortgage Loan Documents that do not include any other
approval or exercise) or (ix) modifications to cure any ambiguity in, or to
correct or supplement any provision of a Mortgage Loan Group Intercreditor
Agreement to the extent permitted therein without obtaining confirmation from
the Rating Agencies with respect to the absence of an Adverse Rating Event,
except that Controlling Class Certificateholder consent shall be required for
any such modification; provided that such modification, waiver, consent or
amendment (x) would not constitute a "significant modification" of the subject
Serviced Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and
would not otherwise constitute an Adverse REMIC Event with respect to any REMIC
Pool or an Adverse Grantor Trust Event with respect to any Grantor Trust Pool,
and (y) would be consistent with the Servicing Standard.
(g) If and to the extent that the Trust, as holder of a
Non-Trust-Serviced Pooled Mortgage Loan, is entitled to consent to or approve
any modification, waiver or amendment of such Non-Trust-Serviced Pooled Mortgage
Loan, the applicable Master Servicer shall be responsible for responding to any
request for such consent or approval in accordance with the Servicing Standard,
and subject to the same conditions and/or restrictions, as if such
Non-Trust-Serviced Pooled Mortgage Loan was a Performing Serviced Mortgage Loan.
Insofar as any other Person would have consent rights hereunder with respect to
a similar modification, waiver or amendment of a Pooled Mortgage Loan that is a
Performing Serviced Mortgage Loan (other than Pooled Mortgage Loans included in
a Serviced Mortgage Loan Group), such Person shall likewise have the same
consent rights, subject to the same conditions and/or restrictions, with respect
to such modification, waiver or amendment of such Non-Trust-Serviced Pooled
Mortgage Loan.
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(h) The applicable Master Servicer shall, as to each Serviced
Mortgage Loan which is secured by the interest of the related Borrower under a
Ground Lease as listed on the Pooled Mortgage Loan Schedule, in accordance with
the related Mortgage Loan Documents, promptly (and, in any event, within 45
days) after the Closing Date notify the related ground lessor of the transfer of
such Mortgage Loan to the Trust pursuant to this Agreement and inform such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to such Master Servicer.
SECTION 3.21. Transfer of Servicing Between Applicable Master
Servicer and Applicable Special Servicer; Record
Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Serviced Mortgage Loan, the applicable Master Servicer shall
immediately give notice thereof to the Controlling Class Representative (and to
the related Serviced Non-Pooled Mortgage Loan Noteholder), and if the applicable
Master Servicer is not also the applicable Special Servicer, the applicable
Master Servicer shall immediately give notice thereof to the applicable Special
Servicer and the Trustee, and shall deliver the related Servicing File to the
applicable Special Servicer and shall use its best reasonable efforts to provide
the applicable Special Servicer with all information, documents (or copies
thereof) and records (including records stored electronically on computer tapes,
magnetic discs and the like) relating to such Mortgage Loan and reasonably
requested by the applicable Special Servicer to enable such Special Servicer to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. The information, documents and records to be delivered by the
applicable Master Servicer to the applicable Special Servicer pursuant to the
prior sentence shall include, but not be limited to, financial statements,
appraisals, environmental/engineering reports, leases, rent rolls, Insurance
Policies, UCC Financing Statements and tenant estoppels, to the extent they are
in the possession of such Master Servicer (or any Sub-Servicer thereof). The
applicable Master Servicer shall use its best reasonable efforts to comply with
the preceding two sentences within five (5) Business Days of the occurrence of
each related Servicing Transfer Event. No later than ten Business Days before
the applicable Master Servicer is required to deliver a copy of the related
Servicing File to the applicable Special Servicer, such Master Servicer shall
review such Servicing File and request from the Trustee any material documents
that it is aware are missing from such Servicing File.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the applicable Master Servicer is not also the
applicable Special Servicer, the applicable Special Servicer shall immediately
give notice thereof to the applicable Master Servicer, the Trustee and the
Controlling Class Representative (and to the related Serviced Non-Pooled
Mortgage Loan Noteholder) and shall return the related Servicing File within
five Business Days to the applicable Master Servicer. Upon giving such notice
and returning such Servicing File to the applicable Master Servicer, the
applicable Special Servicer's obligation to service such Mortgage Loan, and the
applicable Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan, shall terminate, and the obligations of the
applicable Master Servicer to service and administer such Mortgage Loan shall
resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the applicable Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the applicable Master
Servicer with respect to any such Cross-Collateralized Mortgage Loan upon its
becoming a Corrected Mortgage Loan, the applicable Master Servicer and the
applicable Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loan, the
applicable Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while the
subject Serviced Mortgage Loan is a Specially Serviced Mortgage Loan, for
inclusion in the related Mortgage File (with a copy of each such original to the
applicable Master Servicer), and copies of any additional related Mortgage Loan
information,
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including correspondence with the related Borrower generated while the subject
Serviced Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The applicable Master Servicer and the applicable Special
Servicer shall each furnish to the other, upon reasonable request, such reports,
documents, certifications and information in its possession, and access to such
books and records maintained thereby, as may relate to any Serviced Mortgage
Loan or Administered REO Property and as shall be reasonably required by the
requesting party in order to perform its duties hereunder.
(d) In connection with the performance of its obligations
hereunder with respect to any Serviced Mortgage Loan or Administered REO
Property, each of the applicable Master Servicer and the applicable Special
Servicer shall be entitled to rely upon written information provided to it by
the other.
(e) Subject to the provisions of the following sentence, until
such time as a Mortgage Loan becomes a Specially Serviced Mortgage Loan, neither
the applicable Special Servicer nor any of its Affiliates shall contact the
related Borrower or any key principal of such Borrower about such Mortgage Loan
without the prior consent of the applicable Master Servicer (or, in connection
with any Mortgage Loan for which Nationwide (or any successor thereto) or
Principal Global Investors, LLC (or any successor thereto) is the applicable
Primary Servicer, the prior consent of such Primary Servicer). The applicable
Special Servicer and its Affiliates shall not use any information obtained in
its capacity as "Special Servicer" or, if applicable, as a Certificateholder, to
solicit any Borrower or a key principal of such Borrower or any mortgage broker
to permit such Special Servicer or any of its Affiliates to refinance a Mortgage
Loan transferred to the Trust by a Pooled Mortgage Loan Seller that is not
affiliated with such Special Servicer or such Certificateholder, including,
without limitation, (i) the name, address, phone number or other information
regarding such Borrower or a key principal of such Borrower, or (ii) information
related to the related Mortgage Loan or Mortgaged Property including, without
limitation, the maturity date, the interest rate, the prepayment provisions, or
any operating or other financial information; provided that such limitation on
the solicitation of refinancing shall not prevent the applicable Special
Servicer from pursuing such refinancing for (y) any Mortgage Loan that is a
Specially Serviced Mortgage Loan, or (z) any Mortgage Loan that is within 180
days of its Maturity Date (or if such Mortgage Loan is an ARD Mortgage Loan, its
Anticipated Repayment Date) if, after written inquiry by the applicable Special
Servicer to the applicable Master Servicer (or, in connection with any Mortgage
Loan for which Nationwide (or any successor thereto) or Principal Global
Investors, LLC (or any successor thereto) is the applicable Primary Servicer,
written inquiry by the applicable Special Servicer to such Primary Servicer),
such Master Servicer (or, if applicable, such Primary Servicer) indicates that
the Borrower has not obtained a written commitment for refinancing.
SECTION 3.22. Sub-Servicing Agreements and the Primary Servicing
Agreements.
(a) Each Master Servicer and the applicable Special Servicer may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of their respective obligations hereunder, provided that
(A) in each case, the Sub-Servicing Agreement (as it may be amended or modified
from time to time): (i) insofar as it affects the Trust, is consistent with this
Agreement in all material respects; (ii) expressly or effectively provides that
if such Master Servicer or Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), any successor to such Master Servicer or the
applicable Special Servicer, as the case may be, hereunder (including the
Trustee if the Trustee has become such successor pursuant to Section 7.02) may
thereupon either assume all of the rights and, except to the extent they arose
prior to the date of assumption, obligations of such Master Servicer or Special
Servicer, as the case may be, under such agreement or, subject to the provisions
of Section 3.22(f), terminate such rights and obligations without payment of any
fee; (iii) prohibits the Sub-Servicer from modifying any Mortgage Loan or
commencing any foreclosure or similar proceedings with respect to any Mortgaged
Property without the consent of such Master Servicer and, further, prohibits the
Sub-Servicer from taking any action that such Master Servicer would be
prohibited from taking hereunder; (iv) if it is entered into by a Master
Servicer, does not purport to delegate or effectively delegate to the related
Sub-Servicer any of the rights or obligations of the applicable Special Servicer
with respect to any Specially Serviced Mortgage Loan or otherwise; (v) provides
that the Trustee, for the benefit of the Certificateholders (and, in the case of
a Sub-Servicing
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Agreement related to a Serviced Mortgage Loan Group, also for the benefit of the
related Non-Pooled Mortgage Loan Noteholder(s)), shall be a third party
beneficiary under such agreement, but that (except to the extent the Trustee or
its designee assumes the obligations of such Master Servicer or such Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii) and except with respect to the obligations of any
applicable successor Master Servicer under a Designated Sub-Servicer Agreement)
none of the Trustee, any successor to such Master Servicer or such Special
Servicer, as the case may be, or any Certificateholder shall have (and, in the
case of a Sub-Servicing Agreement related to a Serviced Mortgage Loan Group, the
related Non-Pooled Mortgage Loan Noteholder(s) also shall not have) any duties
under such agreement or any liabilities arising therefrom except as explicitly
permitted herein; (vi) permits any purchaser of a Pooled Mortgage Loan pursuant
to this Agreement to terminate such agreement with respect to such purchased
Pooled Mortgage Loan without cause and without payment of any termination fee;
(vii) does not permit the subject Sub-Servicer any rights of indemnification out
of the Trust Fund except through such Master Servicer or such Special Servicer,
as the case may be, pursuant to Section 6.03; and (viii) does not impose any
liability or indemnification obligation whatsoever on the Trustee or the
Certificateholders with respect to anything contained therein; and (B) the
Servicer Report Administrator shall not be entitled to enter into any
Sub-Servicing Agreement to provide for the performance by third parties of any
or all of the obligations imposed on it hereunder in its capacity as Servicer
Report Administrator. The applicable Master Servicer for the PCFII Pooled
Mortgage Loans and the Nationwide Pooled Mortgage Loans is hereby authorized and
directed to execute and deliver a separate Primary Servicing Agreement for (i)
the PCFII Pooled Mortgage Loans and (ii) the Nationwide Pooled Mortgage Loans.
Each party to this Agreement hereby acknowledges and accepts the terms and
provisions of such Primary Servicing Agreement and agrees that, notwithstanding
any other provision of this Agreement to the contrary: (A) if such party is
required hereunder to deliver any notice, certification, report, schedule,
statement or other type of writing to the applicable Master Servicer for the
Pooled Mortgage Loans that are the subject of such Primary Servicing Agreement,
then, insofar as such writing relates to one or more of such Pooled Mortgage
Loans, such party shall deliver such writing both to such applicable Master
Servicer and to the applicable Primary Servicer; (B) if any duty or obligation
of the applicable Master Servicer is delegated to the applicable Primary
Servicer under the applicable Primary Servicing Agreement, and such task
involves or requires the consent of the applicable Special Servicer, then the
applicable Special Servicer shall accept the performance of such duty or
obligation directly by the applicable Primary Servicer (but such performance
must otherwise comply with the other provisions of this Agreement) as if the
applicable Master Servicer were effecting such performance and the applicable
Primary Servicer (in addition to the applicable Master Servicer) shall have the
direct benefit of the related conditions or duties imposed on the Special
Servicer or by which the Special Servicer is bound in connection therewith
(including, without limitation, any time periods for consent or deemed consent
to be observed by the applicable Special Servicer or by which such Special
Servicer is bound); (C) the applicable Primary Servicer (in addition to the
applicable Master Servicer) shall have the benefit of Section 6.03 of this
Agreement to the same extent as if it were the applicable Master Servicer (that
is, only if, and to the extent that, the applicable Master Servicer would have
been entitled to indemnification under such Section 6.03 if it were directly
servicing the applicable Pooled Mortgage Loans that are being primary serviced
by the applicable Primary Servicer); (D) the applicable Primary Servicer (in
addition to the applicable Master Servicer) shall be entitled to engage
Sub-Servicers in accordance with this Section 3.22 (including the engagement of
a Sub-Servicer under a Designated Sub-Servicing Agreement as contemplated under
subsection (f)) as if the applicable Primary Servicer were a Master Servicer
(subject to such limitations, if any, that are imposed on such engagement under
the terms of such Primary Servicing Agreement), and any successor to the
applicable Master Servicer shall be required to assume any Designated
Sub-Servicing Agreement between the applicable Primary Servicer and the
applicable Sub-Servicer in the event of a termination of such Primary Servicer
under the applicable Primary Servicing Agreement (unless the Sub-Servicer is in
default under the terms of such Designated Sub-Servicing Agreement); (E)
amendments to this Agreement shall be restricted in the manner contemplated by
Section 12.01(h); and (F) the applicable Primary Servicer shall be a third party
beneficiary of this sentence.
(b) References in this Agreement to actions taken or to be taken
by a Master Servicer or Special Servicer include actions taken or to be taken by
a Sub-Servicer on behalf of such Master Servicer or such Special Servicer or by
a Primary Servicer on behalf of the applicable Master Servicer with respect to
the Pooled Mortgage Loans that are the subject of a Primary Servicing Agreement,
as applicable; and, in connection therewith, all amounts advanced by any
Sub-Servicer or Primary Servicer, as applicable, to satisfy the obligations of a
Master Servicer or Special Servicer
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hereunder to make Advances shall be deemed to have been advanced by such Master
Servicer or Special Servicer, as the case may be, out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer or Primary
Servicer, as applicable, through such Master Servicer in the same manner and out
of the same funds as if such Sub-Servicer or Primary Servicer, as applicable,
were such Master Servicer or Special Servicer, as the case may be. Such Advances
shall accrue interest in accordance with Sections 3.11(g) and/or 4.03(d), such
interest to be allocable between such Master Servicer or Special Servicer, as
the case may be, and such Sub-Servicer or Primary Servicer, as applicable, as
they may agree. For purposes of this Agreement, the Master Servicers and the
Special Servicers shall each be deemed to have received any payment when a
Sub-Servicer retained by it, or a Primary Servicer on behalf of the applicable
Master Servicer with respect to the Pooled Mortgage Loans that are the subject
of a Primary Servicing Agreement, as applicable, receives such payment.
(c) The Master Servicers and the Special Servicers shall each
deliver to the Trustee copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents.
(d) Each Sub-Servicer actually performing servicing functions and
the Primary Servicers (i) shall be authorized to transact business in the state
or states in which the Mortgaged Properties for the Mortgage Loans it is to
service are situated, if and to the extent required by applicable law, and (ii)
other than with respect to Principal Global Investors, LLC, to the extent
sub-servicing multifamily loans, shall be an approved conventional
seller/servicer of multifamily mortgage loans for Xxxxxxx Mac or Xxxxxx Mae or a
HUD-Approved Servicer.
(e) Each of the Master Servicers and the Special Servicer, for the
benefit of the Trustee and the Certificateholders (and, in the case of a
Sub-Servicing Agreement related to a Serviced Mortgage Loan Group, for the
benefit of the related Serviced Non-Pooled Mortgage Loan Noteholder(s)), shall
(at no expense to any other party hereto or to the Certificateholders or the
Trust) monitor the performance and enforce the obligations of their respective
Sub-Servicers under the related Sub-Servicing Agreements and, in the case of the
applicable Master Servicer for the Pooled Mortgage Loans that are the subject of
a Primary Servicing Agreement, of such Primary Servicer under such Primary
Servicing Agreement. Such enforcement, including the legal prosecution of
claims, termination of Sub-Servicing Agreements or Primary Servicing Agreements,
as applicable, in accordance with their respective terms and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as such Master Servicer or Special Servicer, as
applicable, in its reasonable judgment, would require were it the owner of the
subject Mortgage Loans. Subject to the terms of the related Sub-Servicing
Agreement or Primary Servicing Agreement, as applicable, including any
provisions thereof limiting the ability of a Master Servicer or Special
Servicer, as applicable, to terminate a Sub-Servicer or Primary Servicer, each
of the Master Servicers and the Special Servicers shall have the right to remove
a Sub-Servicer retained by it and, in the case of the applicable Master Servicer
for the Pooled Mortgage Loans that are the subject of such Primary Servicing
Agreement, the applicable Primary Servicer, at any time it considers such
removal to be in the best interests of Certificateholders (and/or, in the case
of a Sub-Servicer for a Serviced Mortgage Loan Group, the related Serviced
Non-Pooled Mortgage Loan Noteholder(s)), as applicable.
(f) It shall be permissible for each Designated Sub-Servicing
Agreement to prohibit a termination of the related Sub-Servicer without cause
(except that cause shall be defined to include the occurrence of an Adverse
Rating Event with respect to the continuation of such Sub-Servicer to the extent
it is actually performing servicing functions or any event caused by such
Sub-Servicer which creates an Event of Default of the applicable Master Servicer
under this Agreement) or to require the payment of a termination fee (in an
amount not to exceed the amount, if any, set forth opposite the related
Sub-Servicer on Schedule III) upon any termination without cause. Any such right
of a Sub-Servicer under a Designated Sub-Servicing Agreement shall be binding
upon any successor to the applicable Master Servicer (including the Trustee) and
the obligation to pay such termination fee upon any termination of such
Sub-Servicer shall constitute a corporate obligation (not reimbursable by the
Trust or any of the other parties to this Agreement, including the applicable
terminated Master Servicer) of such successor.
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(g) In the event the Trustee or its designee assumes the rights
and obligations of a Master Servicer or a Special Servicer under any
Sub-Servicing Agreement or any Primary Servicing Agreement, such Master Servicer
or such Special Servicer, as the case may be, at its expense shall, upon request
of the Trustee, deliver to the assuming party all documents and records relating
to such Sub-Servicing Agreement or Primary Servicing Agreement, as applicable,
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held on behalf of it thereunder, and otherwise use its
best efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreement or the Primary Servicing Agreement, as applicable, to the assuming
party.
(h) Notwithstanding any Sub-Servicing Agreement entered into by it
and, in the case of the applicable Master Servicer for the Pooled Mortgage Loans
that are the subject of a Primary Servicing Agreement, notwithstanding the
Primary Servicing Agreements, the Master Servicers and the Special Servicers
shall each remain obligated and liable to the Trustee and the Certificateholders
(and, in the case of a Serviced Mortgage Loan Group, the related Serviced
Non-Pooled Mortgage Loan Noteholder(s)) for the performance of their respective
obligations and duties under this Agreement in accordance with the provisions
hereof to the same extent and under the same terms and conditions as if it alone
were servicing and administering the Mortgage Loans and/or REO Properties for
which it is responsible. The Master Servicers and the Special Servicers shall
each pay the fees of any Sub-Servicer retained by it and, in the case of the
applicable Master Servicer for the Pooled Mortgage Loans that are the subject of
a Primary Servicing Agreement, the fees of such Primary Servicer, in accordance
with the respective Sub-Servicing Agreement or Primary Servicing Agreement, as
applicable, and, in any event, from its own funds (or from funds otherwise then
payable to it hereunder).
(i) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with a Master Servicer, or by a Primary Servicer pursuant to a Primary
Servicing Agreement with the applicable Master Servicer for the Pooled Mortgage
Loans that are the subject of such Primary Servicing Agreement, as applicable,
shall for all purposes under this Agreement be deemed to be an account
established and maintained by such Master Servicer.
(j) Notwithstanding any contrary provisions of the foregoing
subsections of this Section 3.22, the appointment by a Master Servicer or a
Special Servicer of one or more third-party contractors for the purpose of
performing discrete, ministerial functions shall not constitute the appointment
of Sub-Servicers and shall not subject to the provisions of this Section 3.22;
provided, however, that such Master Servicer or such Special Servicer, as the
case may be, shall remain responsible for the actions of such third-party
contractors as if it were alone performing such functions and shall pay all fees
and expenses of such third-party contractors. The proviso to the preceding
sentence shall not be construed to limit the right of a Master Servicer or a
Special Servicer to be reimbursed for any cost or expense for which it is
otherwise entitled to reimbursement under this Agreement.
(k) The General Special Servicer shall not enter into any
Sub-Servicing Agreement unless the Controlling Class Representative has
consented thereto or such Sub-Servicing Agreement is required to be entered into
in connection with a Serviced Mortgage Loan Group pursuant to the exercise by a
related Serviced Non-Pooled Mortgage Loan Noteholder's exercise of its rights
under Section 7.01(b) of this Agreement, and the Special Servicer has received
written confirmation from each Rating Agency to the effect that entering into
such Sub-Servicing Agreement will not cause an Adverse Rating Event.
(l) Each Primary Servicer shall indemnify (out of its own funds
without reimbursement therefor) the Trustee, the Special Servicer, the
Depositor, the Certificate Administrator, the Trust, and any director, officer,
employee, agent or Affiliate thereof, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that the Trustee,
the Special Servicer, the Depositor, the Certificate Administrator and the Trust
may sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of any of such Primary Servicer's duties under
this Agreement or the applicable Primary Servicing Agreement or by reason of
negligent disregard of such Primary Servicer's obligations and duties hereunder
or thereunder (including a breach of such obligations a substantial motive of
which is to obtain an
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economic advantage from being released from such obligations), and if in any
such situation such Primary Servicer is replaced, such Primary Servicer agrees
that the amount of such claims, losses, penalties, fines, forfeitures, legal
fees and related costs, judgments, and other costs, liabilities, fees and
expenses shall at least equal the incremental costs, if any, of retaining a
successor primary servicer. The Trustee, the Special Servicer, the Depositor or
the Certificate Administrator, as applicable, shall immediately notify such
Primary Servicer if a claim is made by any Person with respect to this Agreement
or the related Primary Servicing Agreement, the PCFII Pooled Mortgage Loans or
the Nationwide Pooled Mortgage Loans entitling the Trustee, the Special
Servicer, the Depositor, the Certificate Administrator or the Trust to
indemnification under this Section, whereupon such Primary Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Trustee, the Special Servicer, the Depositor or the Certificate Administrator,
as applicable) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against the Trustee, the Special Servicer, the Depositor and/or the
Certificate Administrator, as applicable, in respect of such claim. Any failure
to so notify such Primary Servicer shall not affect any rights the Trustee, the
Special Servicer, the Depositor, the Certificate Administrator or the Trust may
have to indemnification under this Agreement, the applicable Primary Servicing
Agreement or otherwise, unless such Primary Servicer's defense of such claim is
materially prejudiced thereby. Such indemnification shall survive the
termination of this Agreement and such Primary Servicing Agreement and the
resignation or termination of the applicable Master Servicer, the Special
Servicer, the Certificate Administrator and/or the Trustee. Any expenses
incurred or indemnification payments made by the Primary Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of such Primary Servicer was not
culpable or that such Primary Servicer did not act with willful misfeasance, bad
faith or negligence.
(m) The parties to this Agreement acknowledge that the Nationwide
Primary Servicer has executed an undertaking, copies of which are attached
hereto as Exhibit R, in which such Primary Servicer has agreed to the
obligations purported to be imposed on it under Section 3.22(l). The parties to
this Agreement agree that each Primary Servicer shall be a third-party
beneficiary of Section 3.22(l) to the extent of the rights granted to such
Primary Servicer under such Section. The parties acknowledge that the PGI
Primary Servicer has affirmed its obligations under Section 3.22(l) by executing
this Agreement.
(n) Notwithstanding any other provision set forth in this
Agreement to the contrary, (i) each Primary Servicer's rights and obligations
under the related Primary Servicing Agreement shall expressly survive a
termination of the applicable Master Servicer under this Agreement (unless such
Primary Servicing Agreement has been terminated in accordance with its terms)
and (ii) any successor to the applicable Master Servicer hereunder (including,
without limitation, the Trustee if its assumes the servicing obligations of such
Master Servicer) shall be deemed to automatically have assumed and agreed to the
terms and provisions of each Primary Servicing Agreement without any further
action, immediately upon such succession. Each Primary Servicer shall be a third
party beneficiary of this subsection.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative; provided that, subject to the last sentence of
this Section 3.23(a), and the acquisition by Centerline REIT Inc. of the
Certificates of the Controlling Class, Centerline REIT Inc. shall serve as the
initial Controlling Class Representative. Upon (i) the receipt by the
Certificate Administrator of written requests for the selection of a successor
Controlling Class Representative from the Holders (or, in the case of Book-Entry
Certificates, the Certificate Owners) of Certificates representing more than 50%
of the Class Principal Balance of the Controlling Class, (ii) the resignation or
removal of the Person acting as Controlling Class Representative or (iii) a
determination by the Certificate Administrator that the Controlling Class has
changed, the Certificate Administrator shall promptly notify the Depositor and
the Holders (and, in the case of Book-Entry Certificates, to the extent actually
known to a Responsible Officer of the Certificate Administrator or identified
thereto by the Depositary or the Depositary Participants, the Certificate
Owners) of the Controlling Class that
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they may select a Controlling Class Representative. Such notice shall set forth
the process established by the Certificate Administrator for selecting a
Controlling Class Representative, which process shall include the designation of
the Controlling Class Representative by the Majority Controlling Class
Certificateholder(s) by a writing delivered to the Certificate Administrator. No
appointment of any Person as a successor Controlling Class Representative shall
be effective until such Person provides the Certificate Administrator with (i)
written confirmation of its acceptance of such appointment, (ii) written
confirmation of its agreement to keep confidential, for so long as reports are
required to be filed with respect to the Trust under Section 15(d) of the
Exchange Act, all information received by it with respect to the Trust and its
assets that has not been filed with the Commission, (iii) an address and
facsimile number for the delivery of notices and other correspondence and (iv) a
list of officers or employees of such Person with whom the parties to this
Agreement may deal (including their names, titles, work addresses and facsimile
numbers).
(b) Within ten Business Days (or as soon thereafter as practicable
if the Controlling Class consists of Book-Entry Certificates) of any change in
the identity of the Controlling Class Representative of which a Responsible
Officer of the Certificate Administrator has actual knowledge, the Certificate
Administrator shall deliver to each of the Trustee, the Master Servicers and the
Special Servicers the identity of the Controlling Class Representative and a
list of each Holder (or, in the case of Book-Entry Certificates, to the extent
actually known to a Responsible Officer of the Certificate Administrator or
identified thereto by the Depositary or the Depositary Participants, each
Certificate Owner) of the Controlling Class, including, in each case, names and
addresses. The Certificate Administrator shall also deliver such information (of
which a Responsible Officer of the Certificate Administrator has actual
knowledge) to a Master Servicer or a Special Servicer promptly upon request
therefor by such Master Servicer or the Special Servicer, as the case may be.
With respect to such information, the Certificate Administrator shall be
entitled to conclusively rely on information provided to it by the Holders (or,
in the case of Book-Entry Certificates, subject to Section 5.06, by the
Depositary or the Certificate Owners) of such Certificates, and the Master
Servicers and the Special Servicers shall each be entitled to rely on such
information provided by the Certificate Administrator with respect to any
obligation or right hereunder that such Master Servicer or such Special
Servicer, as the case may be, may have to deliver information or otherwise
communicate with the Controlling Class Representative or any of the Holders (or,
if applicable, Certificate Owners) of the Controlling Class. In addition to the
foregoing, within two (2) Business Days of the selection, resignation or removal
of a Controlling Class Representative, the Certificate Administrator shall
notify the other parties to this Agreement of such event.
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Certificate Administrator, the Trustee,
each Special Servicer, each Master Servicer and each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Certificate Administrator, the
Trustee, each Special Servicer, each Master Servicer and such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Certificate Administrator
and each other party to this Agreement and each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class, in
writing, of the resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Borrower with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Certificate
Administrator, the Trustee, the applicable Master Servicer, the applicable
Primary Servicer, the applicable Special Servicer and (in any case) the General
Special
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Servicer, whereupon (if a Special Servicer, a Master Servicer, a Primary
Servicer, the Certificate Administrator, the Trustee, any Fiscal Agent or the
Trust are also named parties to the same action and, in the sole judgment of the
General Special Servicer, (i) the Controlling Class Representative had acted in
good faith, without negligence or willful misfeasance, with regard to the
particular matter at issue, and (ii) there is no potential for a Special
Servicer, a Master Servicer, a Primary Servicer, the Certificate Administrator,
the Trustee, any Fiscal Agent or the Trust to be an adverse party in such action
as regards the Controlling Class Representative), the General Special Servicer
on behalf of the Trust shall, subject to Section 6.03, assume the defense of any
such claim against the Controlling Class Representative; provided, however, that
no judgment against the Controlling Class Representative shall be payable out of
the Trust Fund. This provision shall survive the termination of this Agreement
and the termination or resignation of the Controlling Class Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) Subject to Section 3.24(c), the applicable Special Servicer
shall prepare a report (the "Asset Status Report") recommending the taking of
certain actions for each Serviced Mortgage Loan that becomes a Specially
Serviced Mortgage Loan and deliver such Asset Status Report to the Controlling
Class Representative and the applicable Master Servicer not later than 45 days
after the servicing of such Serviced Mortgage Loan is transferred to the
applicable Special Servicer. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced
Mortgage Loan and any negotiations with the related Borrower;
(ii) a discussion of the legal and environmental
considerations reasonably known to the applicable Special Servicer
(including without limitation by reason of any Phase I Environmental
Assessment and any additional environmental testing contemplated by
Section 3.09(c)), consistent with the Servicing Standard, that are
applicable to the exercise of remedies set forth herein and to the
enforcement of any related guaranties or other collateral for the related
Specially Serviced Mortgage Loan and whether outside legal counsel has
been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property or Mortgaged
Properties;
(iv) a summary of the applicable Special Servicer's
recommended action with respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property
or Mortgaged Properties, together with the assumptions used in the
calculation thereof (which the applicable Special Servicer may satisfy by
providing a copy of the most recently obtained Appraisal); and
(vi) such other information as the applicable Special
Servicer deems relevant in light of the Servicing Standard.
If (i) the Controlling Class Representative affirmatively approves
in writing an Asset Status Report, (ii) after ten Business Days from receipt of
an Asset Status Report the Controlling Class Representative does not object to
such Asset Status Report or (iii) within ten Business Days after receipt of an
Asset Status Report the Controlling Class Representative objects to such Asset
Status Report and the applicable Special Servicer makes a determination in
accordance with the Servicing Standard that such objection is not in the best
interest of all the Certificateholders (and, if affected, any Serviced
Non-Pooled Mortgage Loan Noteholder), all as a collective whole, the applicable
Special Servicer shall take the recommended actions described in the Asset
Status Report. If within ten Business Days after receipt of an Asset Status
Report the Controlling Class Representative objects to such Asset Status Report
and the applicable Special
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Servicer does not make a determination in accordance with the Servicing Standard
that such objection is not in the best interest of all the Certificateholders
(and, if affected, any Serviced Non-Pooled Mortgage Loan Noteholder), all as a
collective whole, then (subject to Section 3.24(c)) the applicable Special
Servicer shall revise such Asset Status Report as soon as practicable
thereafter, but in no event later than 30 days after the objection to the Asset
Status Report by the Controlling Class Representative. The applicable Special
Servicer shall, subject to Section 3.24(c), revise such Asset Status Report as
provided in the prior sentence until the earliest of (a) the delivery by the
Controlling Class Representative of an affirmative approval in writing of such
revised Asset Status Report, (b) the failure of the Controlling Class
Representative to disapprove such revised Asset Status Report in writing within
ten (10) Business Days of its receipt thereof; or (c) the passage of ninety (90)
days from the date of preparation of the initial version of the Asset Status
Report. Following the earliest of such events, the applicable Special Servicer
shall implement the recommended action as outlined in the most recent version of
such Asset Status Report (provided that the applicable Special Servicer shall
not take any action that is contrary to applicable law or the terms of the
applicable Mortgage Loan Documents). The applicable Special Servicer may, from
time to time, subject to Section 3.24(c), modify any Asset Status Report it has
previously delivered and implement the new action in such revised report so long
as such revised report has been prepared, reviewed and either approved or not
rejected as provided above.
Notwithstanding the prior paragraph, the applicable Special Servicer
may take any action set forth in an Asset Status Report before the expiration of
the ten (10) Business Day period during which the Controlling Class
Representative may reject such report if (A) the applicable Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders (and, if affected, any
Serviced Non-Pooled Mortgage Loan Noteholder), all as a collective whole, and
(B) it has made a reasonable effort to contact the Controlling Class
Representative. The applicable Special Servicer may not take any action
inconsistent with an Asset Status Report that has been adopted as provided
above, unless such action would be required in order to act in accordance with
the Servicing Standard. If the applicable Special Servicer takes any action
inconsistent with an Asset Status Report that has been adopted as provided
above, the applicable Special Servicer shall promptly notify the Controlling
Class Representative of such inconsistent action and provide a reasonably
detailed explanation of the reasons therefor.
The applicable Special Servicer shall deliver to the applicable
Master Servicer, the Controlling Class Representative and each Rating Agency a
copy of each Asset Status Report that has been adopted as provided above, in
each case with reasonable promptness following such adoption. The applicable
Special Servicer shall deliver to the applicable Master Servicer, the
Controlling Class Representative and each Rating Agency any comparable report
contemplated by the final sentence of Section 3.24(c).
(b) In addition, notwithstanding anything in any other Section of
this Agreement to the contrary, but in all cases subject to Section 3.19(f),
Section 3.24(c), Section 3.27, Section 3.28, Section 3.29 and Section 3.30, as
applicable, the applicable Special Servicer will not be permitted to take, or
consent to the applicable Master Servicer's taking, any of the actions
identified in clauses (i) through (x) of this sentence not otherwise
specifically covered by an approved Asset Status Report, unless and until the
applicable Special Servicer has notified the Controlling Class Representative in
writing of the applicable Special Servicer's intent to take or permit the
particular action and the Controlling Class Representative has consented (or has
failed to object) thereto in writing within ten Business Days of having been
notified thereof in writing and having been provided with all reasonably
requested information with respect thereto (or, in the case of a proposed action
for which the applicable Master Servicer has requested approval from the
applicable Special Servicer, within such shorter period during which the
applicable Special Servicer is initially entitled to withhold consent without
being deemed to have approved the action):
(i) any foreclosure upon or comparable conversion (which
may include acquisitions of an Administered REO Property) of the ownership
of the property or properties securing any Specially Serviced Mortgage
Loan as comes into and continues in default;
(ii) any modification, amendment or waiver of a monetary
term (including a change in the timing of payments but excluding the
waiver of Default Charges) or any non-monetary term (excluding the
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waiver of any "due-on-sale" or "due-on-encumbrance" clause, which clauses
are addressed in clause (ix) below) of (A) any Performing Serviced
Mortgage Loan that has a principal balance of $2,500,000 or more (or, if
the proposed modification/waiver is an extension of maturity or a waiver
of Post-ARD Additional Interest under the circumstances contemplated by
Section 3.20(e), any such Mortgage Loan without regard to balance) or (B)
any Specially Serviced Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to
any Specially Serviced Mortgage Loan;
(iv) any determination to bring an Administered REO
Property into compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at an Administered REO
Property;
(v) any release of collateral for any Serviced Mortgage
Loan (except that in circumstances where either (x) both (A) the relevant
Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with an
outstanding principal balance of less than $2,500,000 and (B) the release
of collateral is not conditioned on obtaining the consent of the lender
under the related Mortgage Loan Documents, or (y) the release of
collateral is made upon a satisfaction of the subject Serviced Mortgage
Loan, the consent of (or failure to object by) the Controlling Class
Representative shall not constitute a condition to the taking of or
consent to such action by the applicable Special Servicer but the
applicable Special Servicer shall deliver notice of such action to the
Controlling Class Representative simultaneously with or promptly following
its taking or consenting to such action);
(vi) any acceptance of substitute or additional collateral
for a Serviced Mortgage Loan (except that in circumstances where either
(x) the relevant Serviced Mortgage Loan is a Performing Serviced Mortgage
Loan with an outstanding principal balance of less than $2,500,000 or (y)
the acceptance of the substitute or additional collateral is not
conditioned on obtaining the consent of the lender, the consent of (or
failure to object by) the Controlling Class Representative shall not
constitute a condition to the taking of or consent to such action by the
applicable Special Servicer but the applicable Special Servicer shall
deliver notice of such action to the Controlling Class Representative
simultaneously with or promptly following its taking or consenting to such
action);
(vii) any releases or reductions of or withdrawals from (as
applicable) any Letters of Credit, Reserve Funds or other Additional
Collateral with respect to any Mortgaged Property securing a Serviced
Mortgage Loan (except that in circumstances where either (x) the relevant
Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with a
principal balance of less than $2,500,000 or (y) the release or reduction
of or withdrawal from (as applicable) the applicable Letter of Credit,
Reserve Funds or Additional Collateral is not conditioned on obtaining the
consent of the lender and the conditions to the release, reduction or
withdrawal (as applicable) that are set forth in the related Mortgage Loan
Documents do not include the approval of the lender or the exercise of
lender discretion (other than confirming the satisfaction of the other
conditions to the transaction set forth in the related Mortgage Loan
Documents that do not include any other approval or exercise), the consent
of (or failure to object by) the Controlling Class Representative shall
not constitute a condition to the taking of or consent to such action by
the applicable Special Servicer but the applicable Special Servicer shall
deliver notice of such action to the Controlling Class Representative
simultaneously with or promptly following its taking or consenting to such
action);
(viii) any termination or replacement, or consent to the
termination or replacement, of a property manager with respect to any
Mortgaged Property securing a Serviced Mortgage Loan (except that in
circumstances where the relevant Serviced Mortgage Loan is a Performing
Serviced Mortgage Loan with a principal balance of less than $2,500,000,
the consent of (or failure to object by) the Controlling Class
Representative shall not constitute a condition to the taking of or
consent to such action by the applicable Special
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Servicer but the applicable Special Servicer shall deliver notice of such
action to the Controlling Class Representative simultaneously with or
promptly following its taking or consenting to such action) or any
modification, waiver or amendment of any franchise or similar agreement,
or any execution of a new franchise or similar agreement, with respect to
any hospitality property;
(ix) any approval of the assignment of the Mortgaged
Property securing any Serviced Mortgage Loan to and assumption of such
Serviced Mortgage Loan by another Person, any waiver of a "due-on-sale"
clause in any Mortgage Loan, any approval of a further encumbrance of the
Mortgaged Property securing any Serviced Mortgage Loan or any waiver of a
"due-on-encumbrance" clause in any Serviced Mortgage Loan (except that in
circumstances where the relevant Serviced Mortgage Loan is a Performing
Serviced Mortgage Loan with principal balance of less than $2,500,000, the
consent of (or failure to object by) the Controlling Class Representative
shall not constitute a condition to the taking of or consent to such
action by the applicable Special Servicer but the applicable Special
Servicer shall deliver notice of such action to the Controlling Class
Representative simultaneously with or promptly following its taking or
consenting to such action); and
(x) any determination as to whether any type of
property-level insurance is required under the terms of any Serviced
Mortgage Loan, is available at commercially reasonable rates, is available
for similar types of properties in the area in which the related Mortgaged
Property is located or any other determination or exercise of discretion
with respect to property-level insurance (except that in circumstances
where the relevant Serviced Mortgage Loan is a Performing Serviced
Mortgage Loan with a principal balance of less than $2,500,000, the
consent of (or failure to object by) the Controlling Class Representative
shall not constitute a condition to the taking of or consent to such
action by the applicable Special Servicer but the applicable Special
Servicer shall deliver notice of such action to the Controlling Class
Representative simultaneously with or promptly following its taking or
consenting to such action);
provided that, in the event that the applicable Special Servicer determines that
immediate action is necessary to protect the interests of the Certificateholders
and any Serviced Non-Pooled Mortgage Loan Noteholder (as a collective whole),
the applicable Special Servicer may take any such action without waiting for the
Controlling Class Representative's response. For the avoidance of doubt, in the
case of Mortgage Loans that are not Specially Serviced Mortgage Loans, the
requirement for approval or deemed approval of the Controlling Class
Representative in connection with any item described in the list above will
apply only to the extent that both (a) the proposed action is described in that
list and (b) the proposed action is a matter for which the applicable Master
Servicer must obtain the approval or deemed approval of the applicable Special
Servicer under the other provisions of this Agreement.
In addition, subject to Section 3.24(c), the Controlling Class
Representative may direct the applicable Special Servicer to take, or to refrain
from taking, such actions as the Controlling Class Representative may deem
advisable with respect to the servicing and administration of Specially Serviced
Pooled Mortgage Loans and/or Administered REO Properties or as to which
provision is otherwise made herein. Upon reasonable request, the applicable
Special Servicer shall provide the Controlling Class Representative with any
information in the applicable Special Servicer's possession with respect to such
matters, including, without limitation, its reasons for determining to take a
proposed action.
(c) Notwithstanding anything herein to the contrary: (i) none of
the Special Servicers shall have any right or obligation to consult with or to
seek and/or obtain consent or approval from any Controlling Class Representative
prior to acting (and provisions of this Agreement requiring such consultation,
consent or approval shall be of no effect) during the period following any
resignation or removal of a Controlling Class Representative and before a
replacement is selected; and (ii) no advice, direction or objection from or by
the Controlling Class Representative, as contemplated by Section 3.24(a) or any
other provision of this Agreement, may (and the applicable Special Servicer
shall ignore and act without regard to any such advice, direction or objection
that such Special Servicer has determined, in its reasonable, good faith
judgment, would): (A) require or cause such Special Servicer to violate
applicable law, the terms of any Mortgage Loan or any other Section of this
Agreement, including the applicable Special Servicer's obligation to act in
accordance
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with the Servicing Standard, (B) result in an Adverse REMIC Event with respect
to any REMIC Pool or an Adverse Grantor Trust Event with respect to any Grantor
Trust Pool, (C) expose the Trust, the Depositor, a Master Servicer (or a Primary
Servicer or Sub-Servicer acting on behalf of a Master Servicer), a Special
Servicer, the Certificate Administrator, the Trustee or any of their respective
Affiliates, members, managers, officers, directors, employees or agents, to any
material claim, suit or liability or (D) materially expand the scope of a Master
Servicer's or Special Servicer's responsibilities under this Agreement.
(d) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Controlling Class Representative
may have special relationships and interests that conflict with those of Holders
of one or more Classes of Certificates; (ii) the Controlling Class
Representative may act solely in the interests of the Holders of the Controlling
Class; (iii) the Controlling Class Representative does not have any duties to
the Holders of any Class of Certificates other than the Controlling Class; (iv)
the Controlling Class Representative may take actions that favor interests of
the Holders of the Controlling Class over the interests of the Holders of one or
more other Classes of Certificates; and (v) the Controlling Class Representative
shall have no liability whatsoever for having so acted, and no Certificateholder
may take any action whatsoever against the Controlling Class Representative or
any director, officer, employee, agent or principal thereof for having so acted.
(e) Notwithstanding anything to the contrary contained in this
Agreement, including other subsections of this Section 3.24, (i) with respect to
each PCFII Mortgage Loan Group, the Controlling Class Representative shall not
have any of the rights set forth in this Section 3.24 (except for the right to
receive a copy of the Asset Status Report), unless the Controlling Class
Representative becomes the applicable Serviced Mortgage Loan Group Controlling
Party; and (ii) with respect to the Circuit City San Xxxxxx Loan Group, both (a)
the Controlling Class Representative shall have all the rights set forth in this
Section 3.24 and (b) any action described in Section 6 of the related Mortgage
Loan Group Intercreditor Agreement as requiring the consent of the related
Non-Pooled Subordinate Noteholder, if and for so long as no Circuit City San
Xxxxxx Change of Control Event exists, shall not be effected without the consent
of such Non-Pooled Subordinate Noteholder.
SECTION 3.25. Replacement of Special Servicers.
(a) Subject to Section 3.25(b), the Controlling Class
Representative may remove the existing General Special Servicer hereunder (with
or without cause) and appoint a successor to the existing General Special
Servicer; provided that if any such removal is made without cause, then (A) the
costs of transferring the special servicing responsibilities of the removed
General Special Servicer to a successor thereto shall be paid by the
Certificateholders of the Controlling Class and (B) the Controlling Class
Representative shall have delivered or caused to have been delivered to each of
the parties hereto a copy of the request for the rating confirmation described
in clause (i) of subsection (b) that constitutes a condition to the
effectiveness of the removal and/or appointment, simultaneously with or promptly
following the delivery of such request to the Rating Agencies; and provided,
further, that the Controlling Class Representative shall have engaged in such
consultation with the Southlake Mall Non-Pooled Pari Passu Companion Noteholder
and otherwise satisfied such conditions as may be set forth in the Southlake
Mall Intercreditor Agreement in connection with such a removal and appointment.
In addition, subject to Section 3.25(b) and any and all limitations on such
right as may be set forth in the related Mortgage Loan Group Intercreditor
Agreement (including the provisions to the effect that the following appointment
right only applies at any time when both (a) a PCFII Change in Control Event has
not occurred and (b) either (i) the Special Servicer does not meet the
eligibility requirements under this Agreement (which requirements consist of the
absence of an Event of Default) or (ii) the initial Holder of a majority of the
Controlling Class of Certificates or an Affiliate thereof ceases to be the
Holder of a majority of the Class of Certificates that then constitutes the
Controlling Class of Certificates), the applicable Serviced Non-Pooled
Subordinate Noteholder for each PCFII Mortgage Loan Group shall be entitled to
remove the applicable Special Servicer as the special servicer for such Serviced
Mortgage Loan Group and appoint a Loan-Specific Special Servicer as the
applicable special servicer for such Serviced Mortgage Loan Group (provided,
however, that, in the case of the GGP Portfolio Loan Group, so long as a PCFII
Change in Control Event has not occurred, the GGP Portfolio Non-Pooled
Subordinate Noteholder shall be entitled, with or without cause, to remove the
applicable Special Servicer as the special servicer for such Serviced Mortgage
Loan Group
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and appoint a Loan-Specific Special Servicer as the applicable special servicer
for such Serviced Mortgage Loan Group), provided, in any event, that if any such
removal is made without cause, then the costs of transferring the special
servicing responsibilities of the removed Special Servicer to a successor
thereto shall be paid by the related Serviced Non-Pooled Subordinate Noteholders
and (B) the related Serviced Non-Pooled Subordinate Noteholder shall have
delivered or caused to have been delivered to each of the parties hereto a copy
of the request for the rating confirmation described in clause (i) of subsection
(b) that constitutes a condition to the effectiveness of the removal and/or
appointment, simultaneously with or promptly following the delivery of such
request to the Rating Agencies.
(b) No removal of a Special Servicer and/or appointment of a
successor thereto pursuant to Section 3.25(a) shall be effective until: (i) the
Trustee shall have received (A) written confirmation from each Rating Agency for
the Rated Certificates that such removal and/or appointment will not result in
an Adverse Rating Event with respect to any Class of Rated Certificates rated by
such Rating Agency and (for so long as any Serviced Non-Pooled Pari Passu
Companion Loan is serviced and administered under this Agreement for which any
Non-Pooled Pari Passu Companion Loan Securities are outstanding) from each
applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan
Securities, as applicable, that such removal and/or appointment will not result
in an Adverse Rating Event with respect to any class of such Non-Pooled Pari
Passu Companion Loan Securities rated by such applicable Rating Agency, (B) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the Person designated to be the successor to the
terminated Special Servicer, and (C) an Opinion of Counsel (which shall not be
an expense of the Trustee or the Trust) substantially to the effect that (1) the
removal of such terminated Special Servicer and/or the appointment of the Person
designated to serve as successor thereto is in compliance with this Section
3.25, (2) such designated Person is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (3) the
Acknowledgment of Proposed Special Servicer, the form of which is attached
hereto as Exhibit I-2, has been duly authorized, executed and delivered by such
designated Person and (4) upon the execution and delivery of the Acknowledgment
of Proposed Special Servicer, such designated Person shall be bound by the terms
of this Agreement and, subject to customary bankruptcy and insolvency exceptions
and customary equity exceptions, this Agreement shall be enforceable against
such designated Person in accordance with its terms; and (ii) if such terminated
Special Servicer has been removed without cause, the Certificateholders of the
Controlling Class shall have delivered to the Trustee and the terminated Special
Servicer such Certificateholders' joint and several undertaking to pay any
expenses incurred by the Trustee and such terminated Special Servicer in
connection with the transfer of special servicing responsibilities to a
successor Special Servicer.
(c) Any Special Servicer terminated pursuant to Section 3.25(a)
shall be deemed to have been so terminated simultaneously with the designated
successor's becoming the applicable Special Servicer hereunder; provided that
(i) the terminated Special Servicer shall be entitled to receive, in connection
with its termination, payment out of the Collection Accounts of all of its
accrued and unpaid Special Servicing Fees, as and to the extent provided in
Section 3.05(a), and reimbursement from the successor to such terminated Special
Servicer of all outstanding Servicing Advances made by such terminated Special
Servicer and all unpaid Advance Interest accrued on such outstanding Servicing
Advances (in which case the successor to such terminated Special Servicer shall
be deemed to have made such Servicing Advances at the same time that such
terminated Special Servicer had actually made them), (ii) such terminated
Special Servicer shall thereafter be entitled to Workout Fees, as and to the
extent expressly permitted by Section 3.11(c), and (iii) such terminated Special
Servicer shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such termination; and provided, further, that such
terminated Special Servicer shall continue to be obligated to pay (and entitled
to receive) all other amounts accrued to (or owing by) it under this Agreement
on or prior to the effective date of such termination. Such terminated Special
Servicer shall cooperate with the Trustee and the replacement to such terminated
Special Servicer in effecting the transfer of such terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two Business Days of its termination becoming effective pursuant to this
Section 3.25, to the replacement to such terminated Special Servicer for
administration by it of all cash amounts that at the time are or should have
been credited by such terminated Special Servicer to the REO Account maintained
by it or to any Servicing Account or Reserve Account or should have been
delivered to the Master Servicers or that are thereafter received by or on
behalf of such terminated Special Servicer with respect to any Mortgage Loan or
REO Property.
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SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually received by or
on behalf of the Trust with respect to any Serviced Pooled Mortgage Loan (other
than any Serviced Pooled Mortgage Loan included in a Serviced Mortgage Loan
Group that includes one or more Serviced Non-Pooled Pari Passu Companion Loans)
or any REO Pooled Mortgage Loan that is a successor thereto and (to the extent
remitted to the applicable Master Servicer by the related Non-Trust Master
Servicer and, in any event, subject to the related Mortgage Loan Group
Intercreditor Agreement) any and all Default Charges that are actually received
by or on behalf of the Trust with respect to a Non-Trust-Serviced Pooled
Mortgage Loan or successor REO Mortgage Loan shall be applied for the following
purposes and in the following order, in each case to the extent of the remaining
portion of such Default Charges:
first, to pay to the Trustee, the applicable Master Servicer or the
Special Servicer, in that order, any Advance Interest due and owing to
such party on outstanding Advances made thereby with respect to such
Pooled Mortgage Loan or REO Pooled Mortgage Loan, as the case may be;
second, to reimburse the Trust for any Advance Interest paid to the
Trustee, the applicable Master Servicer or the Special Servicer since the
Closing Date with respect to such Pooled Mortgage Loan or REO Pooled
Mortgage Loan, as the case may be, which interest was paid from a source
other than Default Charges collected on such Pooled Mortgage Loan or REO
Pooled Mortgage Loan, as the case may be; and
third, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as follows: (A) if such Mortgage
Loan is a Non-Trust-Serviced Pooled Mortgage Loan, to the applicable
Master Servicer as Additional Master Servicing Compensation, in an amount
equal to the entirety of such remaining portion, or (B) if such Mortgage
Loan is a Serviced Mortgage Loan, on a pro rata basis: (i) to the
applicable Master Servicer as Additional Master Servicing Compensation, in
an amount equal to the product of such remaining portion and a fraction,
the numerator of which is the aggregate amount of Default Charges (to the
extent not previously collected and applied under this Section 3.26)
accrued on such Mortgage Loan while such Mortgage Loan was not a Specially
Serviced Mortgage Loan and the denominator of which is the aggregate
amount of Default Charges (to the extent not previously collected and
applied under this Section 3.26) theretofore accrued on such Mortgage
Loan, and (ii) to the Special Servicer as Additional Special Servicing
Compensation, in an amount equal to the product of such remaining portion
and a fraction, the numerator of which is the aggregate amount of Default
Charges (to the extent not previously collected and applied under this
Section 3.26) accrued on such Mortgage Loan while such Mortgage Loan is a
Specially Serviced Mortgage Loan and the denominator of which is the
aggregate amount of Default Charges (to the extent not previously
collected and applied under this Section 3.26) theretofore accrued on such
Mortgage Loan.
(b) Default Charges applied to reimburse the Trust pursuant to
clause second of Section 3.26(a) are intended to be available for distribution
on the Certificates pursuant to Section 4.01(a), subject to application pursuant
to Section 3.05(a) or 3.05(b) for any items payable out of general collections
on the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
clause second of Section 3.26(a) shall be deemed to offset payments of Advance
Interest in the chronological order in which it accrued with respect to the
subject Pooled Mortgage Loan or REO Pooled Mortgage Loan (whereupon such Advance
Interest shall thereafter be deemed to have been paid out of Default Charges).
(c) Any and all amounts otherwise distributable to the Trust as
the holder of any Pooled Mortgage Loan included in a Serviced Mortgage Loan
Group that includes one or more one or more Serviced Non-Pooled Pari Passu
Companion Loans (or any successor REO Pooled Mortgage Loan) or to the holder of
such Serviced Non-Pooled Pari Passu Companion Loan as Default Charges with
respect to such Serviced Mortgage Loan Group, shall be applied for the following
purposes and in the following order, in each case to the extent of the remaining
portion of such amounts and as and to the extent permitted under the related
Mortgage Loan Group Intercreditor Agreement:
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first, to pay to the Trustee, the applicable Master Servicer or the
Special Servicer, in that order, that portion of any Advance Interest due
and owing to such party on outstanding Servicing Advances made thereby
with respect to such Serviced Mortgage Loan Group or any related REO
Property that is allocable (which allocation shall be made pro rata
according to the respective outstanding principal balances of the Served
Pooled Mortgage Loan and the Serviced Non-Pooled Pari Passu Companion
Loans in such Serviced Mortgage Loan Group) to such Mortgage Loan;
second, either (x) in the case of the Pooled Mortgage Loan in such
Serviced Mortgage Loan Group, to pay to the Trustee or the applicable
Master Servicer, in that order, any Advance Interest due and owing to such
party on outstanding P&I Advances made thereby with respect to such Pooled
Mortgage Loan or (y) in the case of the Serviced Non-Pooled Pari Passu
Companion Loan in such Serviced Mortgage Loan Group, to pay to one or more
designees of the holder of such Mortgage Loan any interest similar to
Advance Interest due and owing to such designee on any debt service
advances made thereby for the benefit of the holder of such Serviced
Non-Pooled Pari Passu Companion Loans;
third, to reimburse the Trust for that portion of any Advance
Interest paid to the Trustee, the applicable Master Servicer or the
Special Servicer since the Closing Date with respect to Servicing Advances
made with respect to such Serviced Mortgage Loan Group and any related REO
Property that is allocable (which allocation shall be made pro rata
according to the respective outstanding principal balances of the Served
Pooled Mortgage Loan and the Serviced Non-Pooled Pari Passu Companion
Loans in such Serviced Mortgage Loan Group) to such Mortgage Loan, which
interest was paid from a source other than Default Charges collected on
such Serviced Mortgage Loan Group;
fourth, either (x) in the case of the Pooled Mortgage Loan in such
Mortgage Loan Group, to reimburse the Trust for any Advance Interest paid
to the Trustee or the applicable Master Servicer since the Closing Date
with respect to P&I Advances made thereby with respect to such Pooled
Mortgage Loan, which interest was paid from a source other than Default
Charges collected on such Serviced Mortgage Loan Group, or (y) in the case
of the Serviced Non-Pooled Pari Passu Companion Loans in such Serviced
Mortgage Loan Group, to reimburse the holder of such Serviced Non-Pooled
Pari Passu Companion Loans or its designee for any interest similar to
Advance Interest made for the benefit of the holder of the Serviced
Non-Pooled Pari Passu Companion Loans in such Mortgage Loan Group since
the Closing Date with respect to such Mortgage Loan, which interest was
paid from a source other than Default Charges collected on such Serviced
Mortgage Loan Group; and
fifth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") on a pro rata basis: (i) to the
applicable Master Servicer as Additional Master Servicing Compensation, in
an amount equal to the product of such remaining portion and a fraction,
the numerator of which is the aggregate amount of Default Charges (to the
extent not previously collected and applied under this Section 3.26)
accrued on such Serviced Mortgage Loan Group while the Mortgage Loans
therein were not Specially Serviced Mortgage Loans and the denominator of
which is the aggregate amount of Default Charges (to the extent not
previously collected and applied under this Section 3.26) theretofore
accrued on such Serviced Mortgage Loan Group and (ii) to the Special
Servicer as Additional Special Servicing Compensation, in an amount equal
to the product of such remaining portion and a fraction, the numerator of
which is the aggregate amount of Default Charges (to the extent not
previously collected and applied under this Section 3.26) accrued on such
Serviced Mortgage Loan Group while the Mortgage Loans therein were
Specially Serviced Mortgage Loans and the denominator of which is the
aggregate amount of Default Charges (to the extent not previously
collected and applied under this Section 3.26) theretofore accrued on such
Serviced Mortgage Loan Group.
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SECTION 3.27. Certain Matters Regarding the Southlake Mall Loan
Group.
With respect to the Southlake Mall Loan Group, the parties
acknowledge the consultation rights of the related Serviced Non-Pooled Pari
Passu Companion Noteholder set forth in Section 3.1(c) and Section 3.5.4 of the
related Mortgage Loan Group Intercreditor Agreement.
SECTION 3.28. Certain Matters Regarding the Serviced Mortgage Loans
Groups that include PCFII Pooled Mortgage Loans.
(a) With respect to the GGP Portfolio Loan Group, the parties
acknowledge the consent and approval rights of the GGP Portfolio Non-Pooled
Subordinate Noteholder set forth in Section 20(h) of the GGP Portfolio
Intercreditor Agreement, the cure rights of the GGP Portfolio Non-Pooled
Subordinate Noteholder set forth in Section 20 of the GGP Portfolio
Intercreditor Agreement and the defaulted loan purchase option granted to the
GGP Portfolio Non-Pooled Subordinate Noteholder set forth in Section 9 of the
GGP Portfolio Intercreditor Agreement. With respect to the Aviata Apartments
Loan Group, the parties acknowledge the consent and approval rights of the
Aviata Apartments Non-Pooled Subordinate Noteholder set forth in Section 3.02 of
the Aviata Apartments Intercreditor Agreement, the cure rights of the Aviata
related Serviced Non-Pooled Subordinate Noteholder set forth in Article VII of
the Aviata Apartments Intercreditor Agreement and the defaulted loan purchase
option granted to the Aviata Apartments Non-Pooled Subordinate Noteholder set
forth in Section 4.03 of the Aviata Apartments Intercreditor Agreement.
(b) Any PCFII Non-Pooled Subordinate Noteholder shall be entitled
to receive a copy of any notice or report required to be delivered (upon request
or otherwise) by any party hereto to the Controlling Class Representative or the
Trustee with respect to any related PCFII Mortgage Loan Group, other than with
respect to any determination of the Fair Value of a PCFII Pooled Mortgage Loan
pursuant to Section 3.18. Any party delivering such a copy shall be permitted to
require payment of a sum sufficient to cover the reasonable costs and expenses
of providing such copies pursuant to this Section 3.28(b).
(c) Upon determining that a Servicing Transfer Event has occurred
with respect to the applicable PCFII Mortgage Loan Group in accordance with the
definition of "Specially Serviced Mortgage Loan" or that an "event of default"
has occurred under the related Mortgage Loan Documents for such Serviced
Mortgage Loan Group, the applicable Master Servicer shall promptly notify the
applicable PCFII Non-Pooled Subordinate Noteholder.
(d) Notwithstanding anything to the contrary contained in this
Agreement, each PCFII Non-Pooled Subordinate Noteholder shall be entitled to
appoint any Person (other than the related Borrower or any Affiliate thereof) to
serve as a representative to exercise on behalf of such PCFII Non-Pooled
Subordinate Noteholder the rights and powers granted to such PCFII Non-Pooled
Subordinate Noteholder hereunder or under the related Mortgage Loan Group
Intercreditor Agreement; provided, however, that such appointment need not be
recognized hereunder unless such PCFII Non-Pooled Subordinate Noteholder or such
Person shall have delivered or caused to have been delivered to the applicable
Master Servicer and the applicable Special Servicer a list of officers or
employees of such Person with whom the applicable Master Servicer and the
applicable Special Servicer may deal (including their names, titles, work
addresses and facsimile numbers).
SECTION 3.29. Certain Matters Regarding the HRC Portfolio 3 Loan
Group, the HRC Portfolio 1 Loan Group and the HRC
Portfolio 2 Loan Group.
With respect to each of the HRC Portfolio 3 Loan Group, the HRC
Portfolio 1 Loan Group and the HRC Portfolio 2 Loan Group, the parties
acknowledge the provisions of the related Mortgage Loan Group Intercreditor
Agreement, including (i) the cure rights of the related Serviced Non-Pooled
Subordinate Noteholder set forth in Section 20 of the related Mortgage Loan
Group Intercreditor Agreement, and (ii) the defaulted loan purchase option
granted to the related Non-Pooled Subordinate Noteholder set forth in Section 8
of the related Mortgage Loan Group Intercreditor Agreement.
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Upon determining that a Servicing Transfer Event has occurred with
respect to the HRC Portfolio 3 Loan Group, the HRC Portfolio 1 Loan Group or the
HRC Portfolio 2 Loan Group in accordance with the definition of "Specially
Serviced Mortgage Loan" or that an "event of default" has occurred under the
related Mortgage Loan Documents for such Serviced Mortgage Loan Group, the
applicable Master Servicer shall promptly notify the applicable Non-Pooled
Subordinate Noteholder.
SECTION 3.30. Certain Matters Regarding the Circuit City San Xxxxxx
Loan Group.
With respect to the Circuit City San Xxxxxx Loan Group, the parties
acknowledge the provisions of the related Mortgage Loan Group Intercreditor
Agreement, including (i) the approval and consultation rights of the related
Serviced Non-Pooled Subordinate Noteholder set forth in Section 6 of the related
Mortgage Loan Group Intercreditor Agreement, (ii) the cure rights of the related
Serviced Non-Pooled Subordinate Noteholder set forth in Section 11 of the
related Mortgage Loan Group Intercreditor Agreement, and (iii) the defaulted
loan purchase option granted to the related Non-Pooled Subordinate Noteholder
set forth in Section 12 of the related Mortgage Loan Group Intercreditor
Agreement.
SECTION 3.31. General Acknowledgement Regarding Non-Pooled Mortgage
Loan Noteholders.
Each Certificateholder acknowledges and agrees, by its acceptance of
its Certificates, that: (i) each Non-Pooled Mortgage Loan Noteholder may have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) each Non-Pooled Mortgage Loan Noteholder
may act solely in its own interests; (iii) each Non-Pooled Mortgage Loan
Noteholder does not have any duties to the Holders of any Class of Certificates;
and (iv) each Non-Pooled Mortgage Loan Noteholder shall not have any liability
whatsoever for having so acted in its own interests, and no Certificateholder
may take any action whatsoever against any Non-Pooled Mortgage Loan Noteholder
or any director, officer, employee, agent or principal thereof for such
Non-Pooled Mortgage Loan Noteholder's having so acted in its own interests.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Certificate Administrator shall
apply amounts on deposit in the Distribution Account for the following purposes
and in the following order of priority, in each case to the extent of the
remaining portion of the Available Distribution Amount for such Distribution
Date:
(1) concurrently, (i) from the portion of the Available
Distribution Amount attributable to Loan Group 2, to make distributions of
interest to the Holders of the Class A-1A Certificates up to an amount
equal to all Distributable Certificate Interest in respect of such Class
for such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, if any, (ii) from the portion of the Available
Distribution Amount attributable to Loan Group 1, to make distributions of
interest to the Holders of the Class X-0, X-0, X-0, X-XX and A-4
Certificates, up to an amount equal to, and pro rata as among such Holders
of such Classes in accordance with, all Distributable Certificate Interest
in respect of each such Class for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates, if any, and
(iii) from the remaining portion of the Available Distribution Amount for
such Distribution Date, to make distributions of interest to the Holders
of the Class X-1 and X-2 Certificates, equal to, and pro rata as among
such Holders of such Classes in accordance with, all Distributable
Certificate Interest in respect of each such Class for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any; provided, however, that if the Available Distribution
Amount for such Distribution Date, or the applicable portion of the
Available Distribution Amount attributable to either Loan Group, is
insufficient to pay in full the total amount of interest to be distributed
with respect to any of such Classes as described above, then the Available
Distribution Amount will be allocated among all such Classes up to and pro
rata in accordance with, their respective interest entitlements, without
regard to Loan Group;
(2) to make distributions of principal to the Holders of the
respective Classes of Class A Senior REMIC III Regular Interests, in
amounts equal to the respective portions of the Principal Distribution
Amount for such Distribution Date that are allocated to such Classes as
their current entitlements to principal as provided below, such
distributions to be made pro rata in accordance with such respective
principal entitlements of such Classes;
(3) to make distributions to the Holders of the respective Classes
of Class A Senior REMIC III Regular Interests, up to an amount equal to,
pro rata as among such Holders of such Classes in accordance with, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to each such Class pursuant to Section
4.04(a) and not previously reimbursed.
(4) concurrently, (i) from the remaining portion of the Available
Distribution Amount attributable to Loan Group 1, to make distributions of
interest to the Holders of the Class A-M Certificates up to an amount
equal to all Distributable Certificate Interest in respect of such Class
for such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, if any, and (ii) from the remaining portion of
the Available Distribution Amount attributable to Loan Group 2, to make
distributions of interest to the Holders of the Class AM-A Certificates up
to an amount equal to all Distributable Certificate Interest in respect of
such Class for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates, if any; provided, however, that if
the remaining portion of the Available Distribution Amount for such
Distribution Date, or the applicable remaining portion of the Available
Distribution Amount attributable to either Loan Group, is insufficient to
pay in full the total amount of interest to be distributed with respect to
the Class A-M and/or Class AM-A Certificates as described above, then the
remaining portion of the Available Distribution Amount will be allocated
between the Class A-M and Class AM-A Certificates up to and pro rata in
accordance with, their respective interest entitlements, without regard to
Loan Group;
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(5) to make distributions of principal to the Holders of the Class
A-M and Class AM-A Certificates, in amounts equal to the respective
portions of the Principal Distribution Amount for such Distribution Date
that are allocated to such Classes as their current entitlements to
principal as provided below, such distributions to be made pro rata in
accordance with such respective principal entitlements of such Classes;
(6) to make distributions to the Holders of the Class A-M and
Class AM-A Certificates, up to an amount equal to, pro rata as among such
Holders of such Classes in accordance with, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to each such Class pursuant to Section 4.04(a) and not
previously reimbursed;
(7) concurrently, (i) from the remaining portion of the Available
Distribution Amount attributable to Loan Group 1, to make distributions of
interest to the Holders of the Class A-J Certificates up to an amount
equal to all Distributable Certificate Interest in respect of such Class
for such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, if any, and (ii) from the remaining portion of
the Available Distribution Amount attributable to Loan Group 2, to make
distributions of interest to the Holders of the Class AJ-A Certificates up
to an amount equal to all Distributable Certificate Interest in respect of
such Class for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates, if any; provided, however, that if
the remaining portion of the Available Distribution Amount for such
Distribution Date, or the applicable remaining portion of the Available
Distribution Amount attributable to either Loan Group, is insufficient to
pay in full the total amount of interest to be distributed with respect to
the Class A-J and/or Class AJ-A Certificates as described above, then the
remaining portion of the Available Distribution Amount will be allocated
between the Class A-J and Class AJ-A Certificates up to and pro rata in
accordance with, their respective interest entitlements, without regard to
Loan Group;
(8) to make distributions of principal to the Holders of the Class
A-J and Class AJ-A Certificates, in amounts equal to the respective
portions of the Principal Distribution Amount for such Distribution Date
that are allocated to such Classes as their current entitlements to
principal as provided below, such distributions to be made pro rata in
accordance with such respective principal entitlements of such Classes;
(9) to make distributions to the Holders of the Class A-J
Certificates and Class AJ-A Certificates, up to an amount equal to, pro
rata as among such Holders of such Classes in accordance with, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to each such Class pursuant to Section
4.04(a) and not previously reimbursed;
(10) to make distributions of interest to the Holders of the Class
B Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(11) after the Class Principal Balances of the Class A-J and Class
AJ-A Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class B Certificates, up to an amount (not
to exceed the Class Principal Balance of such Class of Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Principal Distribution Amount for such Distribution Date (net of
any portion thereof distributed on such Distribution Date to the Holders
of any other Class of Principal Balance REMIC III Regular Interests
pursuant to any prior clause of this Section 4.01(a));
(12) to make distributions to the Holders of the Class B
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
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(13) to make distributions of interest to the Holders of the Class
C Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(14) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class C Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(15) to make distributions to the Holders of the Class C
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(16) to make distributions of interest to the Holders of the Class
D Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(17) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class D Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(18) to make distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(19) to make distributions of interest to the Holders of the Class
E Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(20) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class E Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(21) to make distributions to the Holders of the Class E
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(22) to make distributions of interest to the Holders of the Class
F Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(23) after the Class Principal Balance of the Class E Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class F Certificates, up to an amount (not to exceed the
Class
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Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(24) to make distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(25) to make distributions of interest to the Holders of the Class
G Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(26) after the Class Principal Balance of the Class F Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class G Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(27) to make distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(28) to make distributions of interest to the Holders of the Class
H Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(29) after the Class Principal Balance of the Class G Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class H Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(30) to make distributions to the Holders of the Class H
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(31) to make distributions of interest to the Holders of the Class
J Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(32) after the Class Principal Balance of the Class H Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class J Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
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(33) to make distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(34) to make distributions of interest to the Holders of the Class
K Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(35) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class K Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(36) to make distributions to the Holders of the Class K
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(37) to make distributions of interest to the Holders of the Class
L Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(38) after the Class Principal Balance of the Class K Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class L Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(39) to make distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(40) to make distributions of interest to the Holders of the Class
M Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(41) after the Class Principal Balance of the Class L Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class M Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(42) to make distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
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(43) to make distributions of interest to the Holders of the Class
N Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(44) after the Class Principal Balance of the Class M Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class N Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(45) to make distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(46) to make distributions of interest to the Holders of the Class
O Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(47) after the Class Principal Balance of the Class N Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class O Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(48) to make distributions to the Holders of the Class O
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(49) to make distributions of interest to the Holders of the Class
P Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(50) after the Class Principal Balance of the Class O Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class P Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(51) to make distributions to the Holders of the Class P
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(52) to make distributions of interest to the Holders of the Class
Q Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(53) after the Class Principal Balance of the Class P Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class Q Certificates, up to an amount (not to exceed the
Class
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Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(54) to make distributions to the Holders of the Class Q
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(55) to make distributions of interest to the Holders of the Class
S Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(56) after the Class Principal Balance of the Class Q Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class S Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance REMIC III Regular Interests pursuant to any prior clause
of this Section 4.01(a));
(57) to make distributions to the Holders of the Class S
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed; and
(58) to make distributions to the Holders of the Class R
Certificates, up to an amount equal to the excess, if any, of (A) the
Available Distribution Amount for such Distribution Date, over (B) the
aggregate distributions made in respect of the Classes of REMIC III
Regular Interests on such Distribution Date pursuant to the prior clauses
of this Section 4.01(a).
Any distributions of interest made with respect to the Class X-1
Certificates and Class X-2 Certificates on any Distribution Date pursuant to
clause (1) above shall be deemed to have been allocated among the respective
REMIC III Components of each such Class of Certificates on a pro rata basis in
accordance with the respective amounts of Accrued Component Interest for such
REMIC III Components for such Distribution Date.
For purposes of making distributions of principal to the Holders of
the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class
A-M, Class AM-A, Class A-J and Class AJ-A Certificates pursuant to the foregoing
clauses of this Section 4.01(a), the Principal Distribution Amount shall be
allocated among such Classes in the amounts and order of priority provided in
the remaining paragraphs of this Section 4.01(a). The portion of the Principal
Distribution Amount that is allocated to any such Class of Certificates shall
constitute the amount allocated to such Class for purposes of the distribution
of principal on such Class under clause (2), clause (5) or clause (8) above, as
applicable, but the amount of principal to which the Holders of such Class under
such clause (2), clause (5) or clause (8) above, as applicable, are entitled
shall be subject to the remaining portion of the Available Distribution Amount
and the Principal Distribution Amount and the distribution priorities set forth
in all clauses that appear in this Section 4.01(a) earlier than such clause (2),
clause (5) or clause (8) above, as applicable.
On each Distribution Date prior to the Final Distribution Date, the
Certificate Administrator shall allocate the Principal Distribution Amount,
concurrently, (A) to the Holders of the Class A-1, Class X-0, Xxxxx X-0, Class
A-AB, Class A-4, Class A-M and Class A-J Certificates collectively (to be
further allocated as among the Holders of such Classes in the manner set forth
below) in an amount equal to the lesser of (i) the portion of the Principal
Distribution Amount for such Distribution Date that is attributable to Loan
Group 1 and, after the Class Principal Balance of the Class A-1A, Class AM-A and
Class AJ-A Certificates has been reduced to zero, the portion of the Principal
Distribution
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Amount for such Distribution Date that is attributable to Loan Group 2 (net of
any portion thereof that is distributable on such Distribution Date to the
Holders of the Class A-1A, Class AM-A and/or Class AJ-A Certificates) and (ii)
the aggregate Class Principal Balance of the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-M and Class A-J Certificates immediately prior to
such Distribution Date and (B) to the Holders of the Class A-1A, Class AM-A and
Class AJ-A Certificates collectively (to be further allocated as among the
Holders of such Classes in the manner set forth below) in an amount equal to the
lesser of (i) the portion of the Principal Distribution Amount for such
Distribution Date that is attributable to Loan Group 2 and, after the aggregate
Class Principal Balance of the Class A-1, Class X-0, Xxxxx X-0, Class A-AB,
Class A-4, Class A-M and Class A-J Certificates has been reduced to zero, the
portion of the Principal Distribution Amount for such Distribution Date that is
attributable to Loan Group 1 (net of any portion thereof that is distributable
on such Distribution Date to the Holders of the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-M and/or Class A-J Certificates) and (ii) the
aggregate Class Principal Balance of the Class A-1A, Class AM-A and Class AJ-A
Certificates immediately prior to such Distribution Date.
The portion of the Principal Distribution Amount that is allocated
to Holders of the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class
A-M and Class A-J Certificates collectively pursuant to clause (A) of the
immediately preceding paragraph (such portion, the "Certificate Group 1
Principal Distribution Amount") on each Distribution Date will be further
allocated among those holders in the following amounts and order of priority (in
each case to the extent of the remaining unallocated portion of such aggregate
distributions of principal):
(A) first, to the Holders of the Class A-AB Certificates, an
amount equal to the lesser of (1) the Certificate Group 1 Principal
Distribution Amount for such Distribution Date, and (2) an amount
sufficient to reduce the Class Principal Balance of the Class A-AB
Certificates to the Class A-AB Planned Principal Balance for such
Distribution Date;
(B) second, to the Holders of the Class A-1 Certificates, an
amount equal to the lesser of (1) the Certificate Group 1 Principal
Distribution Amount for such Distribution Date, reduced by any portion of
such amount that is allocable to reduce the Class Principal Balance of the
Class A-AB Certificates to the Class A-AB Planned Principal Balance for
such Distribution Date as described in the immediately preceding clause
(A), and (2) the Class Principal Balance of the Class A-1 Certificates
immediately prior to such Distribution Date;
(C) third, to the Holders of the Class A-2 Certificates, an
amount equal to the lesser of (1) the Certificate Group 1 Principal
Distribution Amount for such Distribution Date, reduced by any portion of
such amount that is allocable to reduce the Class Principal Balance of the
Class A-AB Certificates to the Class A-AB Planned Principal Balance for
such Distribution Date as described in the immediately preceding clause
(A) and/or any portion of such amount that is allocable to the Class A-1
Certificates as described in the immediately preceding clause (B) and (2)
the Class Principal Balance of the Class A-2 Certificates immediately
prior to such Distribution Date;
(D) fourth, to the Holders of the Class A-3 Certificates, an
amount equal to the lesser of (1) the Certificate Group 1 Principal
Distribution Amount for such Distribution Date, reduced by any portion of
such amount that is allocable to reduce the Class Principal Balance of the
Class A-AB Certificates to the Class A-AB Planned Principal Balance for
such Distribution Date as described in the immediately preceding clause
(A) and/or any portion of such amount that is allocable to the Class A-1
and/or Class A-2 Certificates as described in the immediately preceding
clauses (B) and (C) and (2) the Class Principal Balance of the Class A-3
Certificates immediately prior to such Distribution Date;
(E) fifth, to the Holders of the Class A-AB Certificates, an
amount (in addition to the amount otherwise allocated and distributable to
them as set forth in clause (A) above) equal to the lesser of (1) the
Certificate Group 1 Principal Distribution Amount for such Distribution
Date, reduced by any portion of such amount that is allocable to reduce
the Class Principal Balance of the Class A-AB Certificates to the Class
A-AB Planned Principal Balance for such Distribution Date as described in
the immediately preceding clause (A) and/or
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any portion of such amount that is allocable to the Class A-1, Class A-2
and/or Class A-3 Certificates as described in the immediately preceding
clauses (B), (C) and (D) and (2) the Class Principal Balance of the Class
A-AB Certificates immediately after the allocation described in clause (A)
above;
(F) sixth, after the Class Principal Balances of the Class
A-1, Class A-2, Class A-3 and Class A-AB Certificates have been reduced to
zero, to the Holders of the Class A-4 Certificates, an amount equal to the
lesser of (1) the Certificate Group 1 Principal Distribution Amount for
such Distribution Date, reduced by any portion of such amount that is
allocable to reduce the Class Principal Balance of the Class A-AB
Certificates to the Class A-AB Planned Principal Balance for such
Distribution Date as described in the immediately preceding clause (A)
and/or any portion of such amount that is allocable to the Class A-1,
Class A-2, Class A-3 and/or Class A-AB Certificates as described in the
immediately preceding clauses (B), (C), (D) and (E) and (2) the Class
Principal Balances of the Class A-4 Certificates immediately prior to such
Distribution Date;
(G) seventh, after the Class Principal Balances of the Class
A-1, Class A-2, Class A-3, Class A-AB and Class A-4 Certificates have been
reduced to zero, to the Holders of the Class A-M Certificates, an amount
equal to the lesser of (1) the Certificate Group 1 Principal Distribution
Amount for such Distribution Date, reduced by any portion of such amount
that is allocable to reduce the Class Principal Balance of the Class A-AB
Certificates to the Class A-AB Planned Principal Balance for such
Distribution Date as described in the immediately preceding clause (A)
and/or any portion of such amount that is allocable to the Class A-1,
Class A-2, Class A-3, Class A-AB and/or Class A-4 Certificates as
described in the immediately preceding clauses (B), (C), (D), (E) and (F)
and (2) the Class Principal Balances of the Class A-M Certificates
immediately prior to such Distribution Date; and
(H) finally, after the Class Principal Balances of the Class
A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4 and Class A-M
Certificates have been reduced to zero, to the Holders of the Class A-J
Certificates, an amount equal to the lesser of (1) the Certificate Group 1
Principal Distribution Amount for such Distribution Date, reduced by any
portion of such amount that is allocable to reduce the Class Principal
Balance of the Class A-AB Certificates to the Class A-AB Planned Principal
Balance for such Distribution Date as described in the immediately
preceding clause (A) and/or any portion of such amount that is allocable
to the Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4 and/or Class
A-M Certificates as described in the immediately preceding clauses (B),
(C), (D), (E), (F) and (G) and (2) the Class Principal Balances of the
Class A-J Certificates immediately prior to such Distribution Date.
The portion of the Principal Distribution Amount that is allocated
to Holders of the Class A-1A, Class AM-A and Class AJ-A Certificates
collectively pursuant to clause (B) of the second preceding paragraph (such
portion, the "Certificate Group 2 Principal Distribution Amount") on each
Distribution Date will be further allocated among those holders in the following
amounts and order of priority (in each case to the extent of the remaining
unallocated portion of such aggregate distributions of principal):
(A) first, to the Holders of the Class A-1A Certificates, an
amount equal to the lesser of (1) the Certificate Group 2 Principal
Distribution Amount for such Distribution Date, and (2) the Class
Principal Balance of the Class A-1A Certificates immediately prior to such
Distribution Date;
(B) second, to the Holders of the Class AM-A Certificates,
an amount equal to the lesser of (1) the Certificate Group 2 Principal
Distribution Amount for such Distribution Date, reduced by any portion of
such amount that is allocable to the Class A-1A Certificates as described
in the immediately preceding clause (A) and (2) the Class Principal
Balance of the Class AM-A Certificates immediately prior to such
Distribution Date; and
(C) third, to the Holders of the Class AJ-A Certificates, an
amount equal to the lesser of (1) the Certificate Group 2 Principal
Distribution Amount for such Distribution Date, reduced by any portion of
such
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amount that is allocable to the Class A-1A and/or Class AM-A Certificates
as described in the immediately preceding clauses (A) and (B) and (2) the
Class Principal Balance of the Class AJ-A Certificates immediately prior
to such Distribution Date.
Notwithstanding the prior three paragraphs, (I) if, as of the
commencement of business on any Distribution Date, (i) any of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class AM-A,
Class A-J and/or Class AJ-A Certificates remain outstanding and (ii) the
aggregate of the Class Principal Balances of the Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q and Class S Certificates have previously been reduced
to zero as a result of the allocation of Realized Losses and Additional Trust
Fund Expenses pursuant to Section 4.04(a), or (II) in any event, on the Final
Distribution Date, then, in each case, the Certificate Administrator shall
allocate the aggregate distributions of principal on the Class X-0, Xxxxx X-0,
Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M, Class AM-A, Class A-J
and Class AJ-A contemplated by clause (2), clause (5) and clause (8) of this
Section 4.01(a) to the Holders of the Class A-1, Class X-0, Xxxxx X-0, Class
A-AB, Class A-4, Class A-1A, Class A-M, Class AM-A, Class A-J and/or Class AJ-A
Certificates in the following amounts and order of priority:
(A) first, to the Holders of the Class A-1, Class X-0, Xxxxx
X-0, Class A-AB, Class A-4 and Class A-1A Certificates, up to an aggregate
amount equal to the lesser of (a) the Principal Distribution Amount for
such Distribution Date, and (b) the aggregate Class Principal Balances of
the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4 and Class A-1A
Certificates immediately prior to such Distribution Date, which amount
shall be allocated between such Classes on a pro rata basis, without
regard to Loan Group, in accordance with their respective Class Principal
Balances immediately prior to such Distribution Date, in each case up to
the Class Principal Balance of such Class;
(B) second, to the Holders of the Class A-M and Class AM-A
Certificates, up to an aggregate amount equal to the lesser of (a) the
Principal Distribution Amount for such Distribution Date, reduced by any
portion of such amount that is allocable to the Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4 and/or Class A-1A Certificates as
described in the immediately preceding clause (A), and (b) the aggregate
Class Principal Balances of the Class A-M and Class AM-A Certificates
immediately prior to such Distribution Date, which amount shall be
allocated between such Classes on a pro rata basis, without regard to Loan
Group, in accordance with their respective Class Principal Balances
immediately prior to such Distribution Date, in each case up to the Class
Principal Balance of such Class; and
(C) third, to the Holders of the Class A-J and Class AJ-A
Certificates, up to an aggregate amount equal to the lesser of (a) the
Principal Distribution Amount for such Distribution Date, reduced by any
portion of such amount that is allocable to the Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M and/or Class AM-A
Certificates as described in the immediately preceding clauses (A) and (B)
and (b) the aggregate Class Principal Balances of the Class A-J and Class
AJ-A Certificates immediately prior to such Distribution Date, which
amount shall be allocated between such Classes on a pro rata basis,
without regard to Loan Group, in accordance with their respective Class
Principal Balances immediately prior to such Distribution Date, in each
case up to the Class Principal Balance of such Class.
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(b) Funds on deposit in the Distribution Account on each
Distribution Date that represent Prepayment Premiums or Yield Maintenance
Charges Received by the Trust with respect to any Pooled Mortgage Loan or REO
Pooled Mortgage Loan during the related Collection Period, in each case net of
any Liquidation Fees payable therefrom, shall be distributable as follows: (A)
on each Distribution Date on which any Prepayment Premium or Yield Maintenance
Charges Received by the Trust on any Pooled Mortgage Loan in Loan Group 1, the
Certificate Administrator shall withdraw from the Distribution Account and
distribute to the Holders of each Class of the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, 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 to whom the
Certificate Administrator is to make a distribution in respect of principal
pursuant to Section 4.01(a), an amount equal to the product of (i) the full
amount of the funds representing each respective Prepayment Premium or Yield
Maintenance Charge Received by the Trust with respect to such Pooled Mortgage
Loan or REO Pooled Mortgage Loan in Group 1 during the related Collection
Period, in each case net of any Liquidation Fees payable therefrom, multiplied
by (ii) the related Base Interest Fraction, and further multiplied by (iii) a
fraction (which in no event may be greater than 1.0), the numerator of which is
equal to the amount of principal to be distributed on such Class on such
Distribution Date pursuant to Section 4.01(a) and the denominator of which is
equal to the portion of the Principal Distribution Amount for such Distribution
Date that is attributable to Loan Group 1; and (B) on each Distribution Date on
which any Prepayment Premium or Yield Maintenance Charges Received by the Trust
on any Pooled Mortgage Loan in Loan Group 2, the Certificate Administrator shall
withdraw from the Distribution Account and distribute to the Holders of each
Class of the Class A-1A, Class AM-A and Class AJ-A Certificates (if any of such
Classes are outstanding immediately prior to such Distribution Date) an amount
equal to the product of (i) the full amount of the funds representing each
respective Prepayment Premium or Yield Maintenance Charge Received by the Trust
with respect to such Pooled Mortgage Loan or REO Pooled Mortgage Loan in Loan
Group 2 during the related Collection Period, in each case net of any
Liquidation Fees payable therefrom, multiplied by (ii) the related Base Interest
Fraction, and further multiplied by (iii) a fraction (which in no event may be
greater than 1.0), the numerator of which is equal to the amount of principal to
be distributed on such Class on such Distribution Date pursuant to Section
4.01(a) and the denominator of which is equal to the portion of the Principal
Distribution Amount for such Distribution Date that is attributable to Loan
Group 2. In the case of either the preceding clause (A) or the preceding clause
(B), if such Distribution Date occurs prior to or in December 2012, the
Certificate Administrator shall withdraw from the Distribution Account any funds
on deposit in the Distribution Account that represent the remaining portion of
such Prepayment Premium or Yield Maintenance Charge and distribute (i) 68% of
such funds to the Holders of the Class X-1 Certificates and (ii) 32% of such
funds to the Holders of the Class X-2 Certificates. If such Distribution Date
occurs after December 2012, the Certificate Administrator shall withdraw from
the Distribution Account any funds on deposit in the Distribution Account that
represent the remaining portion of such Prepayment Premium or Yield Maintenance
Charge and distribute 100% of such funds to the Holders of the Class X-1
Certificates. Any funds distributed on a Class of Certificates in respect of any
Prepayment Premium or Yield Maintenance Charge pursuant to this Section 4.01(b)
shall constitute an "Additional Yield Amount" for such Class.
For purposes of the immediately preceding paragraph, the relevant
"Base Interest Fraction" in connection with any Principal Prepayment of any
Pooled Mortgage Loan that provides for the payment of a Yield Maintenance Charge
or Prepayment Premium, and with respect to any Class of Principal Balance REMIC
III Regular Interests, shall be a fraction (A) the numerator of which is the
greater of (x) zero and (y) the difference between (i) the Pass-Through Rate on
such Class for related Distribution Date, and (ii) the applicable Discount Rate
and (B) the denominator of which is the difference between (i) the Mortgage Rate
on such Pooled Mortgage Loan and (ii) the applicable Discount Rate; provided,
however, that: (a) under no circumstances will the Base Interest Fraction be
greater than 1.0; (b) if the applicable Discount Rate is greater than or equal
to the Mortgage Rate on such Pooled Mortgage Loan and is greater than or equal
to the Pass-Through Rate on such Class for the related Distribution Date, then
the Base Interest Fraction will equal zero; and (c) if the applicable Discount
Rate is greater than or equal to the Mortgage Rate on such Pooled Mortgage Loan
and is less than the Pass-Through Rate on such Class for the related
Distribution Date, then the Base Interest Fraction shall be equal to 1.0. If a
Pooled Mortgage Loan provides for a step-up in the Mortgage Rate, then the
Mortgage Rate used in the determination of the Base Interest Fraction will be
the Mortgage Rate in effect at the time of the prepayment.
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For purposes of the preceding paragraph, the relevant "Discount
Rate" in connection with any Prepayment Premium or Yield Maintenance Charge
collected on any prepaid Pooled Mortgage Loan or REO Pooled Mortgage Loan and
distributable on any Distribution Date shall be a rate per annum equal to (i) if
a discount rate was used in the calculation of the applicable Prepayment Premium
or Yield Maintenance Charge pursuant to the terms of the relevant Pooled
Mortgage Loan or REO Pooled Mortgage Loan, as the case may be, such discount
rate (as reported by the applicable Master Servicer), converted (if necessary)
to a monthly equivalent yield, or (ii) if a discount rate was not used in the
calculation of the applicable Prepayment Premium or Yield Maintenance Charge
pursuant to the terms of the relevant Pooled Mortgage Loan or REO Pooled
Mortgage Loan, as the case may be, the yield calculated by the linear
interpolation of the yields (as reported under the heading "U.S. Government
Securities/Treasury Constant Maturities" in Federal Reserve Statistical Release
H.15 (519) published by the Federal Reserve Board for the week most recently
ended before the date of the relevant prepayment (or deemed prepayment) of U.S.
Treasury constant maturities with a maturity date, one longer and one shorter,
most nearly approximating the related Maturity Date (in the case of a Pooled
Mortgage Loan that is not, or an REO Pooled Mortgage Loan that was not, an ARD
Mortgage Loan) or the related Anticipated Repayment Date (in the case of a
Pooled Mortgage Loan that is, or an REO Pooled Mortgage Loan that was, an ARD
Mortgage Loan), such interpolated yield converted to a monthly equivalent yield.
If Federal Reserve Statistical Release H.15 (519) is no longer published, the
Certificate Administrator shall select a comparable publication as the source of
the applicable yields of U.S. Treasury constant maturities.
(c) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account any amounts then on deposit in the Class
V Sub-Account of the Distribution Account that represent Post-ARD Additional
Interest collected or deemed collected in respect of the Pooled Mortgage Loans
that are ARD Mortgage Loans (or any successor REO Mortgage Loans with respect
thereto) during the related Collection Period and shall distribute such amounts
to the Holders of the Class V Certificates.
(d) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise provided below, all such distributions with
respect to each Class of Certificates on each Distribution Date shall be made to
the Certificateholders of the respective Class of record at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Certificate Administrator with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to the address
of such Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined, in the case of a Principal Balance
Certificate, without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate
pursuant to Section 4.04(a)) will be made in a like manner, but only upon
presentation and surrender of such Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution. Prior to any termination of the Trust Fund pursuant
to Section 9.01, any distribution that is to be made with respect to a
Certificate in reimbursement of a Realized Loss or Additional Trust Fund Expense
previously allocated thereto, which reimbursement is to occur after the date on
which such Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Certificateholder that
surrendered such Certificate as such address last appeared in the Certificate
Register or to any other address of which the Certificate Administrator was
subsequently notified in writing. If such check is returned to the Certificate
Administrator, then the Certificate Administrator, directly or through an agent,
shall take such reasonable steps to contact the related Holder and deliver such
check as it shall deem appropriate. Any funds in respect of a check returned to
the Certificate Administrator shall be set aside by the Certificate
Administrator and held uninvested in trust and credited to the account of the
appropriate Holder. The costs and expenses of locating the appropriate Holder
and holding such funds shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust hereunder. If the
Certificate Administrator has not, after having taken such reasonable steps,
located the related Holder by the second anniversary of the initial sending of a
check, the Certificate Administrator shall, subject to applicable law,
distribute the unclaimed funds to the Class R Certificateholders.
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(e) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Administrator, the Certificate Registrar, the Depositor, the Special
Servicer or the Master Servicers shall have any responsibility therefor except
as otherwise provided by this Agreement or applicable law. The Certificate
Administrator and the Depositor shall perform their respective obligations under
each of the Letter of Representations among the Depositor, the Certificate
Administrator and the initial Depository dated as of the Closing Date and
pertaining to the Book-Entry Certificates, a copy of which Letters of
Representation are attached hereto as Exhibit B.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund with respect to the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates with respect to amounts properly
previously distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Certificate Administrator receives written notification of or expects that the
final distribution with respect to any Class of Certificates (determined, in the
case of a Class of Principal Balance Certificates, without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Class of Certificates pursuant to Section
4.04(a)) will be made on the next Distribution Date, the Certificate
Administrator shall, no later than the second Business Day prior to such
Distribution Date, mail to each Holder of record of such Class of Certificates
on such date a notice to the effect that:
(i) the Certificate Administrator expects that the final
distribution with respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Certificate Registrar or at such other
location therein specified, and
(ii) no interest shall accrue on such Certificates from and
after the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Certificate Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, then the Certificate Administrator, directly
or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such funds in
trust and of contacting such non-tendering Certificateholders following the
first anniversary of the delivery of such second notice thereto shall be paid
out of such funds. No interest shall accrue or be payable to any former Holder
on any amount held in trust pursuant to this paragraph. If all of the
Certificates as to which notice has been given pursuant to this Section 4.01(g)
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Certificate Administrator shall, subject
to applicable law, distribute to the Class R Certificateholders all unclaimed
funds and other assets which remain subject thereto.
(h) [Reserved].
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(i) All distributions made in respect of each Class of Principal
Balance REMIC III Regular Interests on each Distribution Date (including the
Final Distribution Date) pursuant to Section 4.01(a) or Section 4.01(b) shall be
deemed to have first been distributed from REMIC II to REMIC III with respect to
the Corresponding REMIC II Regular Interest(s) for such Class of Principal
Balance REMIC III Regular Interests; and all distributions made with respect to
each Class of Interest Only Certificates on each Distribution Date pursuant to
Section 4.01(a) or Section 4.01(b), and allocable to any particular REMIC III
Component of such Class of Principal Balance REMIC III Regular Interests, shall
be deemed to have first been distributed from REMIC II to REMIC III in respect
of the Corresponding REMIC II Regular Interest for such REMIC III Component. In
each case, if such distribution on any such Class of Certificates was a
distribution of accrued interest, of principal, of additional interest (in the
form of one or more Additional Yield Amounts) or in reimbursement of any
Realized Losses and Additional Trust Fund Expenses previously allocated to such
Class of Principal Balance REMIC III Regular Interests, then the corresponding
distribution deemed to be made on a REMIC II Regular Interest pursuant to the
preceding sentence (and, if applicable the next paragraph) shall be deemed to
also be, respectively, a distribution of accrued interest, of principal, of
additional interest (in the form of one or more Additional Yield Amounts) or in
reimbursement of any Realized Losses and Additional Trust Fund Expenses
previously allocated to REMIC III in respect of such REMIC II Regular Interest.
If (and only if) two or more REMIC II Regular Interests are all
Corresponding REMIC II Regular Interests with respect to the same Class of
Principal Balance REMIC III Regular Interests (for example, if a group of REMIC
II Regular Interests consists of a "REMIC II Regular Interest A-2-1", a "REMIC
II Regular Interest A-2-2", a "REMIC II Regular Interest A-2-3" and a "REMIC II
Regular Interest A-2-4" and such interests are Corresponding REMIC II Regular
Interests with respect to the same Class of Principal Balance Certificates),
then (i) deemed distributions of accrued interest made on such REMIC II Regular
Interests shall be allocated among such REMIC II Regular Interests on a pro rata
basis in accordance with the respective amounts of accrued interest deemed
payable on each such REMIC II Regular Interest for the subject Distribution
Date; (ii) deemed distributions of principal made on such REMIC II Regular
Interests shall be allocated sequentially to such REMIC II Regular Interests in
ascending order of the numerical portion of their alphanumeric designations that
follows the portion thereof that is the same as the alphabetic or alphanumeric
designation of the Class of Principal Balance REMIC III Regular Interests for
which such REMIC II Regular Interests constitute Corresponding REMIC II Regular
Interests (for example, if (and only if) a group of REMIC II Regular Interests
consists of a "REMIC II Regular Interest A-2-1", a "REMIC II Regular Interest
A-2-2", a "REMIC Regular Interest A-2-3" and a "REMIC II Regular Interest
A-2-4", first, to such "REMIC II Regular Interest A-2-1"; second, to such "REMIC
II Regular Interest A-2-2"; third, to such "REMIC II Regular Interest A-2-3";
and, fourth, to such "REMIC II Regular Interest A-2-4"), in each case until the
Uncertificated Principal Balance of such REMIC II Regular Interest is reduced to
zero; (iii) deemed distributions of additional interest (in the form of one or
more Additional Yield Amounts) made on such REMIC II Regular Interests shall be
allocated among such REMIC II Regular Interests on a pro rata basis in
accordance with the respective amounts of principal allocated to each such REMIC
II Regular Interest pursuant to the immediately preceding clause (ii) for the
subject Distribution Date; and (iv) deemed distributions in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses made on
such REMIC II Regular Interests, shall be allocated among such REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts deemed
reimbursable with respect thereto for the subject Distribution Date. If no Class
of Principal Balance REMIC III Regular Interests has multiple Corresponding
REMIC II Regular Interests, the foregoing statements of this paragraph shall not
be given any force or effect.
The actual distributions made by the Certificate Administrator on
each Distribution Date in respect of the REMIC III Regular Interests pursuant to
Section 4.01(a) or Section 4.01(b), as applicable, shall be deemed to have been
so made from the amounts deemed distributed with respect to the REMIC II Regular
Interests on such Distribution Date pursuant to this Section 4.01(i).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(i), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a) or
Section 4.01(b), as applicable.
(j) On each Distribution Date, including the Final Distribution
Date, the Available Distribution Amount for such date shall be deemed to have
first been distributed from REMIC I to REMIC II in respect of the REMIC
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I Regular Interests, in each case to the extent of the remaining portions of
such funds, for the following purposes and in the following order of priority:
(i) as deemed distributions of interest with respect to
all the REMIC I Regular Interests, up to an amount equal to, and pro rata
in accordance with, all Uncertificated Distributable Interest with respect
to each REMIC I Regular Interest for such Distribution Date and, to the
extent not previously deemed distributed, for all prior Distribution
Dates;
(ii) as deemed distributions of principal with respect to
all the REMIC I Regular Interests, up to an amount equal to, and pro rata
in accordance with, as to each REMIC I Regular Interest, the portion of
the Principal Distribution Amount for such Distribution Date attributable
to the related Pooled Mortgage Loan(s) or REO Pooled Mortgage Loan(s); and
(iii) as deemed distributions with respect to all the REMIC
I Regular Interests, up to an amount equal to, pro rata in accordance
with, and in reimbursement of, any Realized Losses and Additional Trust
Fund Expenses previously allocated to each REMIC I Regular Interest (with
compounded interest).
The portion of each Prepayment Premium and Yield Maintenance Charge
that is distributed to any Class of REMIC III Regular Interests on any
Distribution Date shall, in each case, be deemed to have been distributed from
REMIC I to REMIC II in respect of the REMIC I Regular Interest(s) corresponding
to the prepaid Pooled Mortgage Loan or REO Pooled Mortgage Loan, as the case may
be, in respect of which such Prepayment Premium or Yield Maintenance Charge was
received or deemed received.
The actual distributions made by the Certificate Administrator on
each Distribution Date in respect of the REMIC III Regular Interests pursuant to
Section 4.01(a) or Section 4.01(b), as applicable, shall be deemed to have been
so made from the amounts deemed distributed with respect to the REMIC I Regular
Interests on such Distribution Date pursuant to this Section 4.01(j).
Notwithstanding the deemed distributions on the REMIC I Regular Interests
described in this Section 4.01(j), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a) or
Section 4.01(b), as applicable.
SECTION 4.02. Certificate Administrator Reports; Servicer Reporting.
(a) Certificate Administrator Reports and Information. Based
solely on information provided to the Certificate Administrator by the Master
Servicers pursuant to Sections 3.12, 4.02(c) and 4.02(f), the Certificate
Administrator shall prepare (or cause to be prepared) and, on each Distribution
Date, provide or make available electronically (or, upon request by a Privileged
Person who is a Certificateholder or Certificate Owner or by any Privileged
Person who cannot receive a copy electronically, by first class mail) to each
Privileged Person a statement substantially in the form of, and containing the
information set forth in, Exhibit D-1 hereto and in any event containing the
information set forth on Exhibit D-2 (the "Certificate Administrator Report"),
detailing the distributions on such Distribution Date and the performance, both
in the aggregate and individually to the extent available, of the Pooled
Mortgage Loans and the Mortgaged Properties; provided that the Certificate
Administrator need not deliver to the Depositor, the Master Servicers, the
Special Servicer, the Underwriters, the Rating Agencies or the Controlling Class
Representative any Certificate Administrator Report that has been made available
to such Person via the Certificate Administrator's internet website as provided
below; and provided, further, that the Certificate Administrator has no
affirmative obligation to discover the identities of Certificate Owners and need
only react to Persons claiming to be Certificate Owners in accordance with
Section 5.06; and provided, further, that during any period that reports are
required to be filed with the Commission with respect to the Trust pursuant to
Section 15(d) of the Exchange Act, each recipient of the Certificate
Administrator Report shall be deemed to have agreed to keep confidential the
information therein until such Certificate Administrator Report is filed with
the Commission. In any event, each Certificate Administrator Report shall
present, in addition to the other information contemplated by Exhibit D-1 and
Exhibit D-2 hereto, the respective portions of the Principal Distribution Amount
for each Distribution Date that are attributable to each Loan Group, the
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aggregate unpaid principal balance of each Loan Group outstanding as of the
close of business on the related Determination Date and the aggregate Stated
Principal Balance of each Loan Group outstanding immediately before and
immediately after such Distribution Date.
On each Distribution Date, the Certificate Administrator shall
provide or make available electronically (or, upon request by a Privileged
Person who is a Certificateholder or Certificate Owner or by any Privileged
Person who cannot receive a copy electronically, by first class mail) to each
Privileged Person each file and report comprising the CMSA Investor Reporting
Package (other than the CMSA Special Servicer Loan File), to the extent received
by the Certificate Administrator since the prior Distribution Date (or, in the
case of the initial Distribution Date, since the Closing Date); provided that
during any period that reports are required to be filed with the Commission with
respect to the Trust pursuant to Section 15(d) of the Exchange Act, each
recipient of such files and reports shall be deemed to have agreed to keep
confidential the information in any such file or report until such particular
file or report is filed with the Commission. Such files and reports shall be so
provided or made available such that: (i) in the case of the CMSA Loan Setup
File, the CMSA Loan Periodic Update File, the CMSA Financial File, the CMSA
Property File, the CMSA Loan Level Reserve/LOC Report and the CMSA
Reconciliation of Funds Report, such file or report presents information for all
of the Pooled Mortgage Loans and/or Mortgaged Properties (as applicable) without
segregation according to the identities of the Master Servicers; and (ii) in the
case of the CMSA Delinquent Loan Status Report, the CMSA Historical Loan
Modification and Corrected Mortgage Loan Report, the CMSA REO Status Report, the
CMSA Servicer Watch List, the CMSA Comparative Financial Status Report, the CMSA
Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet, the CMSA
Special Servicer Loan File and the Realized Loss Template, such report presents
information separately tabbed for the Pooled Mortgage Loans and/or Mortgaged
Properties or REO Properties (as applicable) for which each respective Master
Servicer is the applicable Master Servicer. Each CMSA Loan Setup File and CMSA
Loan Periodic Update File shall indicate (based solely on the Pooled Mortgage
Loan Schedule) whether each related Pooled Mortgage Loan presented therein is
contained in Loan Group 1 or Loan Group 2.
The Certificate Administrator shall have no obligation to provide
the information or reports described in this Section 4.02(a) until it has
received the requisite information or reports from the Master Servicers provided
for herein, and the Certificate Administrator shall not be in default hereunder
due to a delay in providing such information and reports caused by the failure
of a Master Servicer or a Special Servicer to timely deliver any information or
reports hereunder. None of the Master Servicers, the Special Servicers or the
Certificate Administrator shall be responsible for the accuracy or completeness
of any information supplied to it by a Borrower, each other or a third party,
and accepted by it in good faith, that is included in any reports, statements,
materials or information prepared or provided by either Master Servicer, any
Special Servicer or the Certificate Administrator, as applicable. None of the
Certificate Administrator, the Master Servicers or the Special Servicers shall
have any obligation to verify the accuracy or completeness of any information
provided by a Borrower, a third party or each other.
The Certificate Administrator shall make available to the general
public each month the related Certificate Administrator Report via its internet
website initially located at "xxx.xxxxxxx.xxx". In addition, the Certificate
Administrator shall make available each month, via its internet website on a
restricted basis solely to Privileged Persons, (i) the Unrestricted Servicer
Reports, (ii) the CMSA Bond Level File and the CMSA Collateral Summary File, and
(iii) as a convenience to interested persons (and not in furtherance of the
distribution thereof under the securities laws), the Prospectus, this Agreement
and each of the Pooled Mortgage Loan Purchase Agreements (including, in each
case, all schedules and exhibits thereto). Upon notification by the Depositor
that the Underwriters have sold the Non-Registered Certificates to unaffiliated
third parties, the Certificate Administrator shall remove the restriction
provided for in the preceding sentence and shall make such reports and documents
available to any interested person. The Certificate Administrator shall also
make available each month, on a restricted basis to any Privileged Person via
its internet website, (i) the Restricted Servicer Reports, and (ii) any other
report at the direction of the Depositor. During any period that reports are
required to be filed with the Commission with respect to the Trust pursuant to
Section 15(d) of the Exchange Act, each recipient of information regarding the
Trust on the Certificate Administrator's internet website will be deemed to have
agreed to keep confidential such information until such reports are filed with
the Commission, and to the extent such information is presented on the
Certificate Administrator's internet website, such website will bear a legend to
the
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following effect: "No recipient shall use or disclose the information contained
in this statement/report/file in any manner which could result in a violation of
any provision of the Securities Act of 1933 or the Securities Exchange Act of
1934 or would require registration of any Non-Registered Certificates pursuant
to Section 5 of the Securities Act of 1933."
The Certificate Administrator makes no representations or warranties
as to the accuracy or completeness of any report, document or other information
made available on its internet website and assumes no responsibility therefor.
In addition, the Certificate Administrator may disclaim responsibility for any
information distributed by the Certificate Administrator for which it is not the
original source.
In connection with providing access to the Certificate
Administrator's internet website, the Certificate Administrator may require
registration and the acceptance of a disclaimer (provided that such website
provides thereon electronic means of fulfilling such registration and acceptance
for purposes of obtaining access to Unrestricted Servicer Reports). The
Certificate Administrator shall not be liable for the dissemination of
information in accordance herewith. Questions regarding the Certificate
Administrator's internet website can be directed to the Certificate
Administrator's CMBS customer service desk at (000) 000-0000 or such other
number as the Certificate Administrator may hereinafter specify.
The Certificate Administrator shall be entitled to rely on but shall
not be responsible for the content or accuracy of any information provided by
third parties for purposes of preparing the Certificate Administrator Report and
may affix thereto any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(b) Certain Tax-Related Reporting to Certificateholders by the
Certificate Administrator. Within a reasonable period of time after the end of
each calendar year, the Certificate Administrator shall prepare, or cause to be
prepared, and mail to each Person who at any time during the calendar year was a
Certificateholder (i) a statement containing the aggregate information set forth
on page 2 of Exhibit D hereto for such calendar year or applicable portion
thereof during which such person was a Certificateholder and (ii) such other
customary information as the Certificate Administrator deems necessary or
desirable for Certificateholders to prepare their federal, state and local
income tax returns, including the amount of original issue discount accrued on
the Certificates, if applicable. The obligations of the Certificate
Administrator in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Certificate Administrator pursuant to any requirements of the
Code. As soon as practicable following the request of any Certificateholder in
writing, the Certificate Administrator shall furnish to such Certificateholder
such information regarding the Pooled Mortgage Loans and the Mortgaged
Properties as such Certificateholder may reasonably request and, as has been
furnished to, or may otherwise be in the possession of, the Certificate
Administrator. Each of the Master Servicers and the Special Servicers shall
promptly provide to the Depositor and the Certificate Administrator such
information regarding, in the case of a Master Servicer, the Mortgage Loans and
the Mortgaged Properties for which it is the applicable Master Servicer and, in
the case of a Special Servicer, the Specially Serviced Mortgage Loans and the
Administered REO Properties for which it is the applicable Special Servicer, as
the case may be, in any event as such party may reasonably request and that has
been furnished to, or may otherwise be in the possession of, such Master
Servicer or such Special Servicer, as the case may be.
(c) CMSA Loan Periodic Update Files. Not later than 2:00 p.m. (New
York City time) on the second Business Day following each Determination Date
(which is also the second Business Day preceding the related Distribution Date),
the Servicer Report Administrator shall deliver to the Certificate Administrator
the CMSA Loan Periodic Update File, combining information with respect to the
Pooled Mortgage Loans as to which it is the applicable Master Servicer and
information delivered to the Servicer Report Administrator by the other Master
Servicer with respect to the Pooled Mortgage Loans as to which such other Master
Servicer is the applicable Master Servicer (as described in the immediately
succeeding sentence), without segregation according to the identities of the
Master Servicers, and reflecting information as of the close of business on such
Determination Date (or, in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, as of such other date as of which such information is provided pursuant to
the terms of the related Non-Trust Servicing Agreement). Not later than 9:00
a.m. (New York City time) on the second Business Day following
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each Determination Date, the Master Servicer that is not the Servicer Report
Administrator shall deliver to the Servicer Report Administrator the CMSA Loan
Periodic Update File with respect to the Pooled Mortgage Loans as to which it is
the applicable Master Servicer, reflecting information as of the close of
business on such Determination Date (or, in the case of a Non-Trust-Serviced
Pooled Mortgage Loan, as of such other date as of which such information is
provided pursuant to the terms of the related Non-Trust Servicing Agreement).
The CMSA Loan Periodic Update File delivered by each Master Servicer as
described above shall be in an electronic format that is mutually acceptable to
the two Master Servicers and the Certificate Administrator. Each CMSA Loan
Periodic Update File and any written information supplemental thereto shall
include such information with respect to the subject Pooled Mortgage Loans that
is reasonably required by the Certificate Administrator for purposes of making
the calculations and preparing the reports for which the Certificate
Administrator is responsible pursuant to Section 4.01, this Section 4.02,
Section 4.04 or any other section of this Agreement, as set forth in reasonable
written specifications or guidelines issued by the Certificate Administrator
from time to time. Such information may be delivered to the Certificate
Administrator by the Servicer Report Administrator and, if applicable, to the
Servicer Report Administrator by the other Master Servicer by electronic mail or
in such electronic or other form as may be reasonably acceptable to the two
Master Servicers and the Certificate Administrator. Each CMSA Loan Periodic
Update File shall indicate (based solely on the Pooled Mortgage Loan Schedule)
whether each related Pooled Mortgage Loan presented therein is contained in Loan
Group 1 or Loan Group 2.
Notwithstanding the foregoing, the parties agree that the CMSA Loan
Periodic Update File required to be delivered by each Master Servicer in January
2008 will be based solely upon information generated from actual collections
received by such Master Servicer (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, by the related Non-Trust Master Servicer) and from information
that the respective Pooled Mortgage Loan Sellers deliver or cause to be
delivered to such Master Servicer (including but not limited to information
prepared by third-party servicers of the subject Pooled Mortgage Loans with
respect to the period prior to the Closing Date). Each Special Servicer shall
from time to time (and, in any event, upon request) provide each Master Servicer
with such information in its possession regarding the Specially Serviced
Mortgage Loans and Administered REO Properties for which such Special Servicer
is the applicable Special Servicer as may be necessary for such Master Servicer
to prepare each report and any supplemental information to be provided by such
Master Servicer to the Certificate Administrator.
With respect to each Pooled Mortgage Loan (if any) that is
identified on Schedule XII hereto, the initial values of columns BB, BP, BT and
BU (corresponding to fields 54--"Preceding Fiscal Year NOI", 68--"Most Recent
NOI", 72--"Most Recent Financial As of Start Date" and 73--"Most Recent
Financial As of End Date") of the CMSA Loan Periodic Update File shall be the
initial values set forth opposite such Pooled Mortgage Loan on such Schedule
XII.
(d) CMSA Operating Statement Analysis Report, CMSA Financial
Files, CMSA Comparative Financial Status Reports and CMSA NOI Adjustment
Worksheets. The applicable Master Servicer shall prepare and maintain a CMSA
Operating Statement Analysis Report and a CMSA NOI Adjustment Worksheet with
respect to each Mortgaged Property that secures a Serviced Pooled Mortgage Loan
that is not a Specially Serviced Pooled Mortgage Loan and the applicable Special
Servicer shall prepare and maintain a CMSA Operating Statement Analysis Report
and a CMSA NOI Adjustment Worksheet with respect to each Specially Serviced
Pooled Mortgage Loan and Administered REO Property, in each case in accordance
with the provisions described below. As to quarterly (that is, not annual)
periods, within 105 calendar days after the end of each of the first three
calendar quarters (in each year) for the trailing or quarterly information
received, commencing with respect to the quarter ending on March 31, 2008, the
applicable Master Servicer (in the case of Mortgaged Properties that secure
Serviced Pooled Mortgage Loans that are not Specially Serviced Mortgage Loans)
or the applicable Special Servicer (in the case of Mortgaged Properties securing
Specially Serviced Mortgaged Loans and Administered REO Properties) shall, based
upon the operating statements or rent rolls received (if and to the extent
received) and covering such calendar quarter, prepare (or, if previously
prepared, update) the CMSA Operating Statement Analysis Report and the CMSA
Comparative Financial Status Report for each related Mortgaged Property and/or
REO Property, using the normalized quarterly and normalized year-end operating
statements and rent rolls received from the related Borrower. As to annual (that
is, not quarterly) periods, not later than the second Business Day following the
Determination Date occurring in June of each year (beginning in 2008 for
year-end 2007), the applicable Master Servicer (in the case of Mortgaged
Properties securing Serviced Pooled Mortgage Loans that are not
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Specially Serviced Mortgage Loans) or the applicable Special Servicer (in the
case of Mortgaged Properties securing Specially Serviced Mortgage Loans and
Administered REO Properties) shall, based upon the most recently available
normalized year-end financial statements and most recently available rent rolls
received (if and to the extent received) not less than thirty (30) days prior to
such second Business Day, prepare (or, if previously prepared, update) the CMSA
Operating Statement Analysis Report, the CMSA Comparative Financial Status
Report and a CMSA NOI Adjustment Worksheet for each related Mortgaged Property
and/or REO Property.
The Master Servicers and the Special Servicers shall each remit
electronically an image (labeled according to the Centerline Naming Convention
for Electronic File Delivery) of each CMSA Operating Statement Analysis Report
and/or each CMSA NOI Adjustment Worksheet prepared or updated by it (promptly
following initial preparation and each update thereof), together with the
underlying operating statements and rent rolls (in an electronic imaged format
labeled according to the Centerline Naming Convention for Electronic File
Delivery) to the Controlling Class Representative, the Certificate Administrator
(upon request) and, in the case of such a report prepared or updated by a Master
Servicer, the applicable Special Servicer. The Certificate Administrator shall,
upon request from the applicable Master Servicer or the applicable Special
Servicer and, to the extent such items have been delivered to the Certificate
Administrator by a Master Servicer or a Special Servicer, deliver to any
Certificateholder or, if the Certificate Administrator has in accordance with
Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, any Certificate Owner, a copy of the CMSA Operating Statement Analysis,
the CMSA Financial File and the CMSA NOI Adjustment Worksheet (or update
thereof) for any Mortgaged Property or REO Property and, if requested, the
related operating statement or rent rolls.
The applicable Master Servicer for a Non-Trust-Serviced Pooled
Mortgage Loan shall deliver information comparable to the above-described
information to the same Persons as described above and according to the same
time frames as described above, with reasonable promptness following such Master
Servicer's receipt of such information from the related Non-Trust Master
Servicer under the applicable Non-Trust Servicing Agreement.
If, with respect to any Performing Serviced Mortgage Loan, the
applicable Special Servicer has any questions for the related Borrower based
upon the information delivered to the applicable Special Servicer pursuant to
Section 3.12(a) or this Section 4.02(d), the applicable Master Servicer shall,
in this regard and without otherwise changing or modifying its duties hereunder,
reasonably cooperate with the Special Servicer in assisting the Special Servicer
in the Special Servicer's efforts to contact and solicit information from such
Borrower.
(e) Reporting by the Special Servicers. Not later than 1:00 p.m.
(New York City time) on the first Business Day following each Determination
Date, the General Special Servicer shall prepare and deliver or cause to be
delivered to both of the Master Servicers and the Controlling Class
Representative, and each Loan Specific Special Servicer shall prepare and
deliver or cause to be delivered to the applicable Master Servicer for the
related Serviced Mortgage Loan Group, the related Non-Pooled Subordinate
Noteholder(s) and, upon request, the Controlling Class Representative, the CMSA
Special Servicer Loan File with respect to those Specially Serviced Mortgage
Loans and Administered REO Properties for which it is the applicable Special
Servicer, providing the required information as of such Determination Date. In
addition, each Special Servicer shall from time to time provide the Master
Servicers with such information in such Special Servicer's possession regarding
any Specially Serviced Mortgage Loan or Administered REO Property as may be
requested by either Master Servicer and is reasonably necessary for such Master
Servicer to prepare each report and any supplemental information required to be
provided by such Master Servicer to the Certificate Administrator or (in the
case of the Master Servicer that is not the Servicer Report Administrator) to
the Servicer Report Administrator.
(f) Other Reporting by the Master Servicers. Not later than 2:00
p.m. (New York City time) on the Business Day immediately preceding each
Distribution Date, the Servicer Report Administrator shall prepare (if and to
the extent necessary) and deliver or cause to be delivered to the Certificate
Administrator a CMSA Financial File, a CMSA Property File and a CMSA Comparative
Financial Status Report, combining information for the Pooled Mortgage Loans and
REO Properties for which it is the applicable Master Servicer and the
information delivered to the Servicer
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Report Administrator by the other Master Servicer with respect to the Pooled
Mortgage Loans and REO Properties for which such other Master Servicer is the
applicable Master Servicer, without segregation according to the identities of
the Master Servicers, and in each case providing the most recent information
with respect to the subject Pooled Mortgage Loans and REO Properties as of the
related Determination Date (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, as of such other date as of which such information is provided
pursuant to the terms of the related Mortgage Loan Group Intercreditor Agreement
and the related Non-Trust Servicing Agreement) and, in each case, if applicable,
identifying each subject Pooled Mortgage Loan by loan number and property name.
Not later than 2:00 p.m. (New York City time) on the second Business Day
following each Determination Date (which date is the Business Day immediately
preceding the related Distribution Date), the Master Servicer that is not the
Servicer Report Administrator shall prepare (if and to the extent necessary) and
deliver or cause to be delivered to the Servicer Report Administrator a CMSA
Financial File, a CMSA Property File and a CMSA Comparative Financial Statement
Report, combining information for the Pooled Mortgage Loans and REO Properties
for which such Master Servicer is the applicable Master Servicer and in each
case providing the most recent information with respect to the subject Pooled
Mortgage Loans and REO Properties as of the related Determination Date (or, in
the case of a Non-Trust-Serviced Pooled Mortgage Loan, as of such other date as
of which such information is provided pursuant to the terms of the related
Non-Trust Servicing Agreement) and, in each case, if applicable, identifying
each subject Pooled Mortgage Loan by loan number and property name. Each CMSA
Financial File, CMSA Property File and CMSA Comparative Financial Statement
Report delivered by a Master Servicer as described above shall be in a
computer-readable medium downloadable by the Certificate Administrator and (if
applicable) the Servicer Report Administrator (or, at the Certificate
Administrator's or (if applicable) the Servicer Report Administrator's written
request, in a form reasonably acceptable to the recipient, including on a
loan-by-loan basis). Notwithstanding the foregoing provisions of this subsection
(f), neither Master Servicer shall be required to prepare and/or deliver any of
such files or reports with respect to the Determination Date in January 2008.
Not later than 2:00 p.m. (New York City time) on the Business Day
immediately preceding each Distribution Date, the Servicer Report Administrator
shall deliver or cause to be delivered, with respect to those Pooled Mortgage
Loans and REO Properties as to which it is the applicable Master Servicer, and
shall prepare (if any to the extent necessary) and deliver or cause to be
delivered to the Certificate Administrator, in a computer-readable medium
downloadable by the Certificate Administrator (or, at the Certificate
Administrator's written request, in a form reasonably acceptable to the
recipient, including on a loan-by-loan basis), a CMSA Delinquent Loan Status
Report, a CMSA Historical Loan Modification and Corrected Mortgage Loan Report,
a CMSA Loan Level Reserve/LOC Report, a CMSA REO Status Report, a CMSA Operating
Statement Analysis Report, a CMSA Comparative Financial Status Report, a CMSA
Servicer Watch List, a CMSA NOI Adjustment Worksheet, a CMSA Total Loan Report,
a CMSA Advance Recovery Report and a Realized Loss Template, in each case
combining information for the Pooled Mortgage Loans and REO Properties for which
it is the applicable Master Servicer and the information delivered to the
Servicer Report Administrator by the other Master Servicer with respect to the
Pooled Mortgage Loans and REO Properties for which such other Master Servicer is
the applicable Master Servicer but segregated according to the identities of the
Master Servicers, in each case providing the most recent information with
respect to the subject Pooled Mortgage Loans and REO Properties as of the
related Determination Date (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, as of such other date as of which such information is provided
pursuant to the terms of the related Non-Trust Servicing Agreement) and, in each
case, if applicable, identifying each subject Pooled Mortgage Loan by loan
number and property name. On the second Business Day following each
Determination Date (which date is the Business Day immediately preceding the
related Distribution Date), the Master Servicer that is not the Servicer Report
Administrator, shall prepare (if any to the extent necessary) and deliver or
cause to be delivered to the Servicer Report Administrator, in a
computer-readable medium downloadable by the Servicer Report Administrator (or,
at the Servicer Report Administrator's written request, in a form reasonably
acceptable to the recipient, including on a loan-by-loan basis), a CMSA
Delinquent Loan Status Report, a CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, a CMSA Loan Level Reserve/LOC Report, a CMSA REO Status
Report, a CMSA Operating Statement Analysis Report, a CMSA Comparative Financial
Status Report, a CMSA Servicer Watch List, a CMSA NOI Adjustment Worksheet, a
CMSA Total Loan Report, a CMSA Advance Recovery Report and a Realized Loss
Template, in each case combining information for the Pooled Mortgage Loans and
REO Properties for which it is the applicable Master Servicer, in each case
providing the most recent information with respect to the subject Pooled
Mortgage Loans and REO Properties as of the related Determination Date
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(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, as of such other
date as of which such information is provided pursuant to the terms of the
related Non-Trust Servicing Agreement) and, in each case, if applicable,
identifying each subject Pooled Mortgage Loan by loan number and property name.
Notwithstanding the foregoing, neither Master Servicer shall be required to
prepare and deliver any of such files or reports with respect to the initial
Determination Date following the Closing Date.
Not later than the first Business Day following each Distribution
Date (which day is the second Business Day following the related Master Servicer
Remittance Date), the Servicer Report Administrator shall prepare (if and to the
extent necessary) and deliver or cause to be delivered to the Certificate
Administrator and the Controlling Class Representative a Centerline P&I Advance
as of Remittance Date Report and a Centerline Interest on Advance Reconciliation
Report, each combining information for the Pooled Mortgage Loans for which it is
the applicable Master Servicer and the information delivered to the Servicer
Report Administrator by the other Master Servicer with respect to the Pooled
Mortgage Loans for which such other Master Servicer is the applicable Master
Servicer, without segregation according to the identities of the Master
Servicers, and in each case providing the most recent information with respect
to the subject Pooled Mortgage Loans as of the Master Servicer Remittance Date
related to such Distribution Date (or, in the case of a Non-Trust-Serviced
Pooled Mortgage Loan, as of such other date as of which such information is
provided pursuant to the terms of the related Non-Trust Servicing Agreement).
Not later than each Distribution Date (which day is the first Business Day
following the related Master Servicer Remittance Date), the Master Servicer that
is not the Servicer Report Administrator shall prepare (if and to the extent
necessary) and deliver or cause to be delivered to the Servicer Report
Administrator a Centerline P&I Advance as of Remittance Date Report and a
Centerline Interest on Advance Reconciliation Report, in each case providing the
most recent information with respect to the subject Pooled Mortgage Loans as of
the Master Servicer Remittance Date related to such Distribution Date (or, in
the case of a Non-Trust-Serviced Pooled Mortgage Loan, as of such other date as
of which such information is provided pursuant to the terms of the related
Non-Trust Servicing Agreement).
Within two Business Days following the end of each calendar month,
the Servicer Report Administrator shall prepare (if and to the extent necessary)
and deliver or cause to be delivered to the Certificate Administrator and the
Controlling Class Representative a Centerline Mortgage Loans Delinquent Report,
combining information for the Pooled Mortgage Loans for which it is the
applicable Master Servicer and the information delivered to the Servicer Report
Administrator by the other Master Servicer with respect to the Pooled Mortgage
Loans for which such other Master Servicer is the applicable Master Servicer,
without segregation according to the identities of the Master Servicers, and in
each case providing the most recent information with respect to the subject
Pooled Mortgage Loans (which shall be the Pooled Mortgage Loans for which a P&I
Advance was made on the preceding P&I Advance Date) as of the end of such
calendar month. Within one Business Day following the end of each calendar
month, the Master Servicer that is not the Servicer Report Administrator shall
prepare (if and to the extent necessary) and deliver or cause to be delivered to
the Servicer Report Administrator a Centerline Mortgage Loans Delinquent Report
providing the most recent information with respect to the subject Pooled
Mortgage Loans for which such Master Servicer is the applicable Master Servicer
(which shall be the Pooled Mortgage Loans for which such Master Servicer is the
applicable Master Servicer and a P&I Advance was made on the preceding Master
Servicer Remittance Date) as of the end of such calendar month.
Each Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (and any
Centerline P&I Advance as of Remittance Date Report, any Centerline Interest on
Advances Reconciliation Report and any Centerline Mortgage Loans Delinquent
Report) prepared by it with respect to the Pooled Mortgage Loans and REO
Properties as to which it is the applicable Master Servicer, available each
month on such Master Servicer's internet website only with the use of a
password, in which case such Master Servicer shall provide such password to (i)
the other parties to this Agreement, who by their acceptance of such password
shall be deemed to have agreed not to disclose such password to any other
Person, (ii) the Rating Agencies and the Controlling Class Representative, and
(iii) each Certificateholder and Certificate Owner who requests such password,
provided that any such Certificateholder or Certificate Owner, as the case may
be, has delivered a certification substantially in the form of Exhibit K-1 to
the Certificate Administrator (with a copy to such Master Servicer). In
connection with providing such access to its internet website, a Master Servicer
may require registration and the acceptance of a reasonable disclaimer and
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otherwise (subject to the preceding sentence) adopt reasonable rules and
procedures, which may include, to the extent a Master Servicer deems necessary
or appropriate, conditioning access on execution of a reasonable agreement
governing the availability, use and disclosure of such information, and which
may provide indemnification to such Master Servicer for any liability or damage
that may arise therefrom. For the avoidance of doubt, the foregoing sentence
shall not be construed to limit any right to receive information already
provided for in this Agreement.
If either Master Servicer determines, in its reasonable judgment,
that information regarding the Pooled Mortgage Loans and REO Properties for
which it is the applicable Master Servicer (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 (i) if
the nature of the information is comparable to the information contemplated by
the forms of Restricted Servicer Reports or the applicable Master Servicer
otherwise determines that public availability of such information is not
appropriate under the circumstances, (A) the applicable Master Servicer shall be
entitled to so notify the Certificate Administrator, set forth such information
in an additional report (in a format reasonably acceptable to the Certificate
Administrator), deliver such report to the Certificate Administrator
simultaneously with the delivery of its reports described in the first paragraph
of this Section 4.02(f) and provide to the Certificate Administrator a statement
(for inclusion in the Certificate Administrator Report for the related
Distribution Date or for direct posting to the Certificate Administrator's
website, as the case may be) generally describing the type of information
provided and to the effect that such information will be made available by the
same means and at the same time that the Restricted Servicer Reports are made
available with respect to such Distribution Date; and (B) if the information
described in the immediately preceding clause (A) is timely received, the
Certificate Administrator shall include such statement in the Certificate
Administrator Report for such Distribution Date (or directly post it to the
Certificate Administrator's internet website) and make such additional report
available by the same means and at the same time that the Restricted Servicer
Reports are made available with respect to such Distribution Date; and (ii) if
the nature of the information is not as described by clause (i) above, the
applicable Master Servicer shall be entitled to so notify the Certificate
Administrator, set forth such information in an additional report (in a format
reasonably acceptable to the Certificate Administrator) and deliver such report
to the Certificate Administrator simultaneously with the delivery of its reports
described in the first paragraph of this Section 4.02(f); and (B) if the
information described in the immediately preceding clause (A) is timely
received, the Certificate Administrator shall include such additional report in
or as an attachment to the Certificate Administrator Report for such
Distribution Date (or directly post it to the Certificate Administrator's
internet website). If the applicable Master Servicer or the applicable Special
Servicer for a Serviced Mortgage Loan determines, in its reasonable judgment,
that information regarding such Serviced Mortgage Loan, any related Mortgaged
Property or any related REO Property for which it is the applicable Master
Servicer should be disclosed to the related Non-Pooled Mortgage Loan Noteholders
(if any), then such Master Servicer may forward or make such information
available to such Non-Pooled Mortgage Loan Noteholders.
(g) Certain General Provisions Regarding Reporting. The applicable
Special Servicer shall deliver to the applicable Master Servicer(s) the reports
and files required to be delivered pursuant to Section 4.02(d) and Section
4.02(e), the Master Servicer that is not the Servicer Report Administrator shall
deliver to the Servicer Report Administrator the reports and files required to
be delivered pursuant to Section 4.02(c), Section 4.02(d) and Section 4.02(f)
and the applicable Master Servicer(s) shall deliver to the Certificate
Administrator the reports set forth in Section 4.02(c) and Section 4.02(f), in
an electronic format reasonably acceptable to the Special Servicers, the Master
Servicers and the Certificate Administrator. Each Master Servicer may, absent
manifest error, conclusively rely on the file to be provided by a Special
Servicer pursuant to Section 4.02(e). The Servicer Report Administrator may,
absent manifest error, conclusively rely on the reports to be provided by the
other Master Servicer pursuant to Section 4.02(c) and Section 4.20(f). The
Certificate Administrator may, absent manifest error, conclusively rely on the
reports to be provided by a Master Servicer pursuant to Section 4.02(c) and
Section 4.20(f). To the extent that any report to be prepared and provided to
the Certificate Administrator, the Controlling Class Representative and/or (if
applicable) the Servicer Report Administrator by a Master Servicer pursuant to
Section 4.02(c) and Section 4.20(f) is dependent on information from a Special
Servicer, the other Master Servicer or a party under a Non-Trust Servicing
Agreement, and such Special Servicer, such other Master Servicer or such party
under a Non-Trust Servicing Agreement (as the case may be) has not timely
provided such information to such Master Servicer, such Master Servicer shall on
a timely basis provide to the Certificate
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Administrator, the Controlling Class Representative and/or (if applicable) the
Servicer Report Administrator, as applicable, as complete a report as the
information provided by such Special Servicer, such other Master Servicer or
such party under a Non-Trust Servicing Agreement (as the case may be) permits
and shall promptly update and provide to the Certificate Administrator, the
Controlling Class Representative and/or (if applicable) the Servicer Report
Administrator, as applicable, a complete report when such Special Servicer, such
other Master Servicer or such party under a Non-Trust Servicing Agreement (as
the case may be) provides such Master Servicer with the requisite missing
information; and such Master Servicer shall not be in breach hereunder for so
providing an incomplete report under Section 4.02(c) or Section 4.02(f) under
the foregoing circumstances. Furthermore, if any report to be provided to the
Certificate Administrator, the Controlling Class Representative and/or (if
applicable) the Servicer Report Administrator by a Master Servicer pursuant to
Section 4.02(c) or Section 4.02(f) was to be prepared by a Special Servicer or
the other Master Servicer and delivered to such Master Servicer, such Master
Servicer shall not be in breach by reason of any delay in its delivery of such
report to the Certificate Administrator, the Controlling Class Representative
and/or (if applicable) the Servicer Report Administrator, as applicable, by
reason of a delay on the part of such Special Servicer or such other Master
Servicer (as the case may be) to deliver such report to such Master Servicer;
and such Master Servicer shall deliver as promptly as reasonably practicable to
the Certificate Administrator, the Controlling Class Representative and/or the
Servicer Report Administrator, as applicable, any such report that it receives
from such Special Servicer or such other Master Servicer (as the case may be)
after the requisite delivery date.
(h) Order of Presentations. Each report hereunder that comprises
part of the CMSA Investor Reporting Package shall, to the extent such report
presents information regarding the individual Mortgage Loans and Mortgaged
Properties, present such information in ascending order of the loan
identification number set forth in the Prospectus.
(i) Certain Means of Delivery. Except to the extent a form of
delivery is specified in this Agreement, if a Master Servicer or Special
Servicer is required to deliver any statement, report or information under any
provision of this Agreement, such Master Servicer or such Special Servicer, as
the case may be, may satisfy such obligation by (x) physically delivering a
paper copy of such statement, report or information, (y) delivering such
statement, report or information in a commonly used electronic format or (z)
making such statement, report or information available on a Master Servicer's
internet website or the Certificate Administrator's internet website and
notifying the Person(s) entitled to such statement, report or information of
such availability. Notwithstanding the foregoing, the Certificate Administrator,
the Trustee and each Special Servicer may each request delivery in paper format
of any statement, report or information required to be delivered to the
Certificate Administrator, the Trustee or such Special Servicer, as the case may
be, and clause (z) shall not apply to the delivery of any information required
to be delivered to the Certificate Administrator, the Trustee or any Special
Servicer, as the case may be, unless the Certificate Administrator, the Trustee
or such Special Servicer, as the case may be, consents to such delivery.
(j) Notwithstanding any other provision of this Agreement to the
contrary, the parties hereto shall cause to be delivered to the Controlling
Class Representative the reports and information set forth on Exhibit E-6 hereto
in the manner, formats and at the times set forth therein. The intention of this
Section 4.02 is (among other things) to implement the reporting contemplated by
such Exhibit E-6. If the Controlling Class Representative and a Special Servicer
are Affiliates of one another, a report delivered to one of them by a Master
Servicer need not also be delivered to the other of them.
(k) During any period that reports are required to be filed with
the Commission with respect to the Trust pursuant to Section 15(d) of the
Exchange Act, access to information regarding the Trust on a Master Servicer's
Internet Website will be conditioned to the party attempting to gain such access
electronically agreeing to keep confidential any such information that has not
been filed with the Commission.
(l) No provisions of this Agreement shall be deemed to require a
Master Servicer or Special Servicer to confirm or make any representation
regarding the accuracy of (or to be liable or responsible for) any other
Person's information or report.
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(m) Each of the Master Servicers shall produce the reports
required of it under this Agreement (including those set forth on Exhibit E-6)
but shall not be required to (but may upon request) produce any ad hoc
non-standard written reports. If a Master Servicer elects to provide any
non-standard reports, it may require the Person requesting such report to pay a
reasonable fee to cover the costs of the preparation thereof.
(n) Notwithstanding anything in this Section 4.02 to the contrary,
in preparing and disseminating any of the statements, reports and other
information required under this Section 4.02, insofar as such statements,
reports and other information relate to a Non-Trust-Serviced Pooled Mortgage
Loan or any related REO Property, the applicable Master Servicer shall be
entitled to rely upon the information received by it under the related Mortgage
Loan Group Intercreditor Agreement and/or the related Non-Trust Servicing
Agreement; provided that it does not have actual knowledge that any such
information received by it is erroneous. In addition, absent knowledge to the
contrary, the applicable Master Servicer, the Servicer Report Administrator and
the Certificate Administrator shall assume that, on each Distribution Date, for
so long as a Non-Trust-Serviced Pooled Mortgage Loan or any successor REO Pooled
Mortgage Loan with respect thereto is part of the Mortgage Pool, an amount at
least equal to the Monthly Payment (or, following the related maturity date or
any related REO Acquisition, the Assumed Monthly Payment) for the preceding Due
Date will (in the form of a P&I Advance or otherwise) be passed through to the
Certificateholders, with the interest portion thereof adjusted to the related
Net Mortgage Rate.
(o) Each of the parties hereto shall cooperate with the other to
make information available that may be necessary to satisfy the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act.
(p) With respect to each Serviced Mortgage Loan Group, the
applicable Master Servicer shall deliver or cause to be delivered to each
Serviced Non-Pooled Mortgage Loan Noteholder (or its designee), the Certificate
Administrator (upon request), the applicable Special Servicer and the
Controlling Class Representative the following materials, in writing or by
electronic means reasonably acceptable to related Serviced Non-Pooled Mortgage
Loan Noteholder (or its designee) and such Master Servicer (and such reports may
include any reasonable disclaimers with respect to information provided by third
parties or with respect to assumptions required to be made in the preparation of
such reports as such Master Servicer deems appropriate) not later than two
Business Days after the end of each Collection Period:
(i) the amount of the distributions made on the respective
Mortgage Loan(s) in such Serviced Mortgage Loan Group for such period
allocable to interest (separately identifying Default Interest) and the
amount thereof allocable to principal;
(ii) if the amount of the distributions to any related
Serviced Non-Pooled Mortgage Loan Noteholder was less than the full amount
that would have been distributable to such Serviced Non-Pooled Mortgage
Loan Noteholder if there had been sufficient funds, the amount of the
shortfall, stating separately the amounts allocable to interest and
principal;
(iii) the outstanding principal balance of each Mortgage
Loan in such Serviced Mortgage Loan Group immediately following payment
for such period;
(iv) the aggregate amount of unscheduled payments of
principal allocable to each Mortgage Loan in such Serviced Mortgage Loan
Group (and the source thereof) made during the related period;
(v) identification of any Event of Default under this
Agreement of which such Master Servicer has notice or actual knowledge, as
of the date of such report;
(vi) the aggregate outstanding Servicing Advances with
respect to such Serviced Mortgage Loan Group and interest thereon as of
the end of, and all interest paid on Servicing Advances with respect to
such Serviced Mortgage Loan Group during, the prior calendar month;
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(vii) the amount of the servicing compensation paid to the
applicable Master Servicer and the applicable Special Servicer with
respect to such Serviced Mortgage Loan Group, including the Master
Servicing Fee, the Special Servicing Fee, any Work-out Fee, any
Liquidation Fee and any charges to the related Borrower retained by the
applicable Master Servicer or the applicable Special Servicer as allocated
among the Mortgage Loans in such Serviced Mortgage Loan Group;
(viii) information relating to the status of such Serviced
Mortgage Loan Group if the Mortgage Loans in such group constitute
Specially Serviced Mortgage Loans including, if applicable, the status of
the bankruptcy of the related Borrower (along with copies of any related
bankruptcy filings);
(ix) the amount of any shortfalls in distributions to the
holders of the Mortgage Loans in such Serviced Mortgage Loan Group for
such period and the amount of any outstanding amounts due on the such
Mortgage Loans for prior periods; and
(x) information contained in the CMSA Investor Reporting
Package relating solely to the Pooled Mortgage Loans within such Serviced
Mortgage Loan Group.
SECTION 4.03. P&I Advances.
(a) On or before 1:00 p.m. (New York City time) on each P&I
Advance Date, each Master Servicer shall, subject to Section 4.03(c), either (i)
remit from its own funds to the Certificate Administrator for deposit into the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made by such Master Servicer in respect of the related Distribution
Date, (ii) apply amounts held in such Master Servicer's Collection Account for
future distribution to Certificateholders in subsequent months in discharge of
any such obligation to make such P&I Advances, or (iii) make such P&I Advances
in the form of any combination of (i) and (ii) aggregating the total amount of
P&I Advances to be made by such Master Servicer; provided, that the Master
Servicer shall give preference to amounts in clause (ii) of this sentence for
purposes of making P&I Advances. Any amounts held in either Master Servicer's
Collection Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in such Master Servicer's records and replaced
by such Master Servicer by deposit in its Collection Account prior to the next
succeeding Master Servicer Remittance Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal and
interest in respect of which such P&I Advances were made). If, as of 3:30 p.m.
(New York City time) on any P&I Advance Date, either Master Servicer shall not
have made any P&I Advance required to be made by it on such date pursuant to
this Section 4.03(a) (and shall not have delivered to the Certificate
Administrator and the Trustee the Officer's Certificate and other documentation
related to a determination of nonrecoverability of a P&I Advance pursuant to
Section 4.03(c)) or shall not have remitted any portion of the Master Servicer
Remittance Amount required to be remitted by such Master Servicer on such date,
then the Certificate Administrator shall provide notice of such failure to such
Master Servicer by facsimile transmission as soon as possible, but in any event
before 4:30 p.m. (New York City time) on such P&I Advance Date. If after such
notice the Certificate Administrator does not receive the full amount of such
P&I Advances by 9:00 a.m. (New York City time) on the related Distribution Date,
then the Certificate Administrator shall promptly notify the Trustee (but in any
event before 10:00 a.m. (New York City time) and the Trustee shall (not later
than 12:00 noon, New York City time, on the related Distribution Date) make the
portion of such P&I Advances that was required to be, but was not, made or
remitted, as the case may be, by such Master Servicer with respect to the
related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each Master
Servicer (or by the Trustee or Fiscal Agent, as applicable, if such Master
Servicer fails to do so) in respect of any Distribution Date, subject to Section
4.03(c) below, shall equal the aggregate of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments, in each case net of any
related Master Servicing Fees (and, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any
comparable master servicing fees under the related Non-Trust Servicing
Agreement), due or deemed due, as the case may be, in respect of the Pooled
Mortgage Loans as to which such Master Servicer is the applicable Master
Servicer and any successor REO Mortgage
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Loans with respect thereto on their respective Due Dates occurring in the month
in which such Distribution Date occurs, in each case to the extent such amount
was not Received by the Trust as of the close of business on the related
Determination Date; provided that, if an Appraisal Reduction Amount exists with
respect to any Required Appraisal Loan, then the interest portion of any P&I
Advance required to be made in respect of such Required Appraisal Loan for the
related Distribution Date shall be reduced (it being herein acknowledged that
there shall be no reduction in the principal portion of such P&I Advance) to
equal the product of (i) the amount of the interest portion of such P&I Advance
that would otherwise be required to be made in respect of such Required
Appraisal Loan for such Distribution Date without regard to this proviso,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
shall equal the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount, and the denominator of which shall equal the Stated Principal
Balance of such Required Appraisal Loan immediately prior to such Distribution
Date.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. The determination by a Master
Servicer (or, if applicable, the Trustee) that a prior P&I Advance (or
Unliquidated Advance in respect thereof) that it has made constitutes a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable, good faith judgment. In making such recoverability determination,
such Person will be entitled to consider (among other things) only the
obligations of the Borrower under the terms of the related Pooled Mortgage Loan
as it may have been modified, to consider (among other things) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions regarding the possibility
and effects of future adverse change with respect to such Mortgaged Properties,
to estimate and consider (among other things) future expenses and to estimate
and consider (among other things) the timing of recoveries. In addition, any
such Person may update or change its recoverability determinations at any time
and may obtain from the applicable Special Servicer any analysis, Appraisals or
market value estimates or other information in the possession of the applicable
Special Servicer for such purposes. Any determination by a Master Servicer (or,
if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or
that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I
Advance, shall be evidenced by an Officer's Certificate delivered to the
Depositor, the applicable Special Servicer, the Certificate Administrator, the
Controlling Class Representative and, if made by a Master Servicer, the Trustee
(on or before the related P&I Advance Date in the case of a proposed P&I
Advance), setting forth the basis for such determination, accompanied by a copy
of an Appraisal of the related Mortgaged Property or REO Property performed
within the 12 months preceding such determination by a Qualified Appraiser, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that the Person making such
determination may have obtained. A copy of any such Officer's Certificate (and
accompanying information) of the Trustee or any Fiscal Agent shall also be
promptly delivered to the Certificate Administrator, the Controlling Class
Representative, the applicable Special Servicer and the Master Servicer for the
subject Mortgage Loan. Absent bad faith, a Master Servicer's determination as to
the recoverability of any P&I Advance shall be conclusive and binding on the
Certificateholders and, in all cases, the Trustee shall be entitled to
conclusively rely on any nonrecoverability determination made by a Master
Servicer with respect to a particular P&I Advance. The applicable Special
Servicer shall promptly furnish any party required to make P&I Advances
hereunder with any information in its possession regarding the Specially
Serviced Pooled Mortgage Loans and REO Properties as such party required to make
P&I Advances may reasonably request. The applicable Master Servicer shall
consider Unliquidated Advances in respect of prior P&I Advances as outstanding
Advances for purposes of recoverability determinations as if such Unliquidated
Advance were a P&I Advance.
The Special Servicer for each Pooled Mortgage Loan shall also be
entitled to make a determination (subject to the same standards and procedures
that apply in connection with a determination by the applicable Master Servicer)
to the effect that a prior P&I Advance (or Unliquidated Advance in respect
thereof) previously made hereunder by the applicable Master Servicer (or, if
applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any
proposed P&I Advance by the applicable Master Servicer (or, if applicable, the
Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case
such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes
of this Agreement. A copy of any Officer's Certificate (and accompanying
information) of the applicable
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Special Servicer in support of its determination shall be promptly delivered to
the Master Servicer for the subject Mortgage Loan. The applicable Special
Servicer may update or change its recoverability determination at any time.
In connection with each Non-Pooled Pari Passu Companion Loan (but if
a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial
mortgage securitization as of the Closing Date, then this provision shall apply
only from and after the date on which the applicable Master Servicer has
received notice to the effect that such Non-Pooled Pari Passu Companion Loan has
been securitized as part of a commercial mortgage securitization similar to the
securitization effected by this Agreement and in which securities are issued
that are rated by at least one national statistical rating organization): (i) if
the applicable Master Servicer receives written notice (which notice is
accompanied by the supporting evidence for such determination) that the related
master servicer or other comparable party responsible for making debt service
advances under the pooling and servicing agreement for such securitization has
determined, pursuant to such agreement, that any debt service advance made or to
be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any
successor REO mortgage loan with respect thereto) would not ultimately be
recoverable out of collections on such Mortgage Loan (or such REO mortgage
loan), then such Master Servicer shall deliver an Officer's Certificate to such
effect to the Trustee, the Certificate Administrator, the applicable Special
Servicer and the Depositor or shall forward a copy of the written notice
received from such master servicer or comparable party; (ii) if such Master
Servicer thereafter receives notice (which notice is accompanied by the
supporting evidence for such determination) that such determination has been
withdrawn or rescinded by such comparable party, or if P&I Advances related to
such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to
constitute Nonrecoverable P&I Advances by operation of the definition of
"Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide
notice to such effect to the Trustee, the Certificate Administrator, the
applicable Special Servicer and the Depositor; (iii) if such Master Servicer
determines that any P&I Advance made or to be made with respect to any Pooled
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included
in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I
Advance, then the Master Servicer shall notify in writing such comparable party
of such determination (which notice shall be accompanied by the supporting
evidence for such determination as contemplated by the preceding paragraph); and
(iv) following any determination described in the preceding clause (iii), if
such Master Servicer subsequently determines (other than by operation of clause
(ii) above) that P&I Advances made or to be made with respect to such Pooled
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no
longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in
writing such comparable party of such determination (which notice shall be
accompanied by the supporting evidence for such determination as contemplated by
the preceding paragraph). Each of the Non-Pooled Pari Passu Companion
Noteholders (and its related master servicer or comparable party responsible for
debt service advances) shall be a third party beneficiary of the preceding
clauses (iii) and (iv) to the extent that such clause relates to the related
Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master
Servicer is a third party beneficiary of a provision in the related Mortgage
Loan Group Intercreditor Agreement or in the applicable pooling and servicing
agreement that imposes (in connection with the related Non-Pooled Pari Passu
Companion Loan) on such comparable party duties (among others) that are
substantially the same as the duties that are imposed (in connection with the
related Pooled Mortgage Loan) on the applicable Master Servicer under the
preceding clauses (iii) and (iv) and the definition of "Nonrecoverable Advance".
If the applicable Master Servicer receives notice of a nonrecoverability
determination by another party to this Agreement as to any P&I Advance on a
Pooled Mortgage Loan included in a Mortgage Loan Group as described above, such
Master Servicer shall promptly forward such notice and the accompanying
information to the applicable related comparable party under such other pooling
and servicing agreement.
In connection with the DRA/Colonial Office Portfolio Pooled Mortgage
Loan, the following provisions shall apply: (a) any determination by the
applicable Master Servicer that any P&I Advance made or to be made with respect
to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto) is or, if made, would be a Nonrecoverable P&I Advance shall be made
independently from any determinations (or the absence of any determinations)
made by the Non-Trust Master Servicer or any other related Non-Pooled Pari Passu
Companion Noteholder regarding nonrecoverability of debt service advances on
such Non-Trust Master Servicer's or such other Non-Pooled Pari Passu Companion
Noteholder's Non-Pooled Pari Passu Companion Loan and (b) if the applicable
Master Servicer (or the Trustee, if applicable) determines that any prior P&I
Advance or any xxxxxxxxxxx X&X Advance on such
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Pooled Mortgage Loan constitutes a Nonrecoverable Advance, then the applicable
Master Servicer (or the Trustee, if applicable) shall notify such Non-Trust
Master Servicer and any other related Non-Pooled Pari Passu Companion Noteholder
of such determination.
In connection with the RRI Hotel Portfolio Pooled Mortgage Loan, the
following provisions shall apply: (a) if the applicable Master Servicer receives
a written notice of the nature described in clause (i) of the second preceding
paragraph of this Section 4.03(c) to the effect that the master servicer or
other comparable party responsible for debt service advances with respect to the
applicable Non-Pooled Pari Passu Companion Loan under the related pooling and
servicing agreement for such other commercial mortgage securitization has
determined, pursuant to such agreement, that any debt service advance made or to
be made with respect to such related Non-Pooled Pari Passu Companion Loan (or
any successor REO mortgage loan with respect thereto) would not ultimately be
recoverable out of collections on such Mortgage Loan (or such REO mortgage
loan), then any xxxxxxxxxxx X&X Advance on the related Pooled Mortgage Loan (or
any successor REO Mortgage Loan) under this Agreement shall be deemed to
constitute a Nonrecoverable Advance, notwithstanding the absence of any
determination (as otherwise contemplated above) by any party hereto that any
prior P&I Advance or any xxxxxxxxxxx X&X Advance on such Pooled Mortgage Loan
constitutes a Nonrecoverable Advance; and (b) if any xxxxxxxxxxx X&X Advance on
such Pooled Mortgage Loan (or any successor REO Mortgage Loan) is deemed to
constitute a Nonrecoverable Advance pursuant to the preceding clause (a) or the
applicable Master Servicer (or the Trustee, if applicable) determines that any
prior P&I Advance or any xxxxxxxxxxx X&X Advance on such Pooled Mortgage Loan
constitutes a Nonrecoverable Advance, then the applicable Master Servicer (or
the Trustee, if applicable) shall not subsequently make any xxxxxxxxxxx X&X
Advance on such Pooled Mortgage Loan unless such Master Servicer (or the
Trustee, if applicable) has consulted with such other master servicer or
comparable party, and similar parties for any other RRI Hotel Portfolio
Non-Pooled Pari Passu Companion Loan that has been included in another
commercial mortgage securitization pursuant to which rated securities have been
or are subsequently issued, and they all agree that circumstances with respect
to such Mortgage Loans have changed such that a proposed future debt service
advance would not be a Nonrecoverable Advance. Notwithstanding the preceding
sentence, each party to this Agreement with the discretion to determine that a
P&I Advance constitutes a Nonrecoverable Advance (as otherwise contemplated
above) shall continue to have such discretion.
In connection with the Southlake Mall Pooled Mortgage Loan, after
any date when the Southlake Mall Non-Pooled Pari Passu Companion Loan is
included in another commercial mortgage securitization pursuant to which rated
securities have been or are subsequently issued, the following provisions shall
apply: (a) if the applicable Master Servicer receives a written notice described
in clause (i) of the third preceding paragraph of this Section 4.03(c) to the
effect that the master servicer or other comparable party responsible for debt
service advances with respect to the Non-Pooled Pari Passu Companion Loan under
the related pooling and servicing agreement for such other commercial mortgage
securitization has determined, pursuant to such agreement, that any debt service
advance made or to be made with respect to such related Non-Pooled Pari Passu
Companion Loan (or any successor REO mortgage loan with respect thereto) would
not ultimately be recoverable out of collections on such Mortgage Loan (or such
REO mortgage loan), then any xxxxxxxxxxx X&X Advance on the related Pooled
Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be
deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of
any determination (as otherwise contemplated above) by any party hereto that any
prior P&I Advance or any xxxxxxxxxxx X&X Advance on such Pooled Mortgage Loan
constitutes a Nonrecoverable Advance; and (b) if any xxxxxxxxxxx X&X Advance on
such Pooled Mortgage Loan (or any successor REO Mortgage Loan) is deemed to
constitute a Nonrecoverable Advance pursuant to the preceding clause (a) or the
applicable Master Servicer (or the Trustee, if applicable) determines that any
prior P&I Advance or any xxxxxxxxxxx X&X Advance on such Pooled Mortgage Loan
constitutes a Nonrecoverable Advance, then the applicable Master Servicer (or
the Trustee, if applicable) shall not subsequently make any xxxxxxxxxxx X&X
Advance on such Pooled Mortgage Loan unless such Master Servicer (or the
Trustee, if applicable) has consulted with such other master servicer or
comparable party and they both agree that circumstances with respect to such
Mortgage Loans have changed such that a proposed future debt service advance
would not be a Nonrecoverable Advance. Notwithstanding the preceding sentence,
each party to this Agreement with the discretion to determine that a P&I Advance
constitutes a Nonrecoverable Advance (as otherwise contemplated above) shall
continue to have such discretion.
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(d) In the case of each Pooled Mortgage Loan, the Master
Servicers and the Trustee shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
P&I Advance made thereby (with its own funds), to the extent that such P&I
Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect
of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled
Mortgage Loan when made, in which case such interest shall begin to accrue from
the related P&I Advance Date, or (ii) remains outstanding when the subject
Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject
Monthly Payment or Assumed Monthly Payment, in which case such interest shall
begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace
Period Loan in respect of the subject Monthly Payment or Assumed Monthly
Payment, in either case, for so long as such P&I Advance is outstanding (or, in
the case of Advance Interest payable to a Master Servicer, if earlier, until the
Late Collection of the delinquent principal and/or interest in respect of which
such P&I Advance was made has been Received by the Trust). Such interest with
respect to any P&I Advance shall be payable: (i) first, in accordance with
Sections 3.05 and 3.26, out of any Default Charges subsequently collected on the
particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as to which such P&I
Advance relates; and (ii) then, after such P&I Advance is reimbursed, but only
if and to the extent that such Default Charges are insufficient to cover such
Advance Interest, out of general collections on the Pooled Mortgage Loans and
REO Properties on deposit in the applicable Master Servicer's Collection Account
or, to the extent contemplated by the second paragraph of Section 3.05(a), in
the other Master Servicer's Collection Account. The applicable Master Servicer
shall (subject to the operation of Section 3.05(a)(II)) reimburse itself or the
Trustee, as applicable, for any outstanding P&I Advance made thereby with
respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as
practicable after funds available for such purpose are deposited in such Master
Servicer's Collection Account, and in no event shall interest accrue in
accordance with this Section 4.03(d) on any P&I Advance as to which the
corresponding Late Collection was received by or on behalf of the Trust as of
the related P&I Advance Date.
(e) With regard to such P&I Advances, the applicable Master
Servicer or the Trustee shall account for that part of the P&I Advances which is
attributable to Past Grace Period Loans, and that part of the P&I Advances which
is attributable to Within Grace Period Loans.
(f) Notwithstanding anything to the contrary, no P&I Advances
shall be made with respect to any Non-Pooled Mortgage Loan (whether or not it
constitutes a Serviced Non-Pooled Mortgage Loan or otherwise) or any successor
REO Mortgage Loan.
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the
Certificate Administrator shall determine the amount, if any, by which (i) the
then aggregate of the Class Principal Balances of all the Classes of Principal
Balance REMIC III Regular Interests, exceeds (ii) the aggregate Stated Principal
Balance of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then, except to the extent that
such excess exists because of the reimbursement of Workout-Delayed Reimbursement
Amounts (from the principal portions of P&I Advances and/or payments or other
collections of principal on the Mortgage Pool pursuant to subsection (II)(iii)
of Section 3.05(a)) during any prior Collection Period (other than those that
were determined to constitute Nonrecoverable Advances in the immediately
preceding Collection Period), the Class Principal Balances of the Class S, Class
Q, Class P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class
G, Class F, Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order, in each case, until such excess or the related
Class Principal Balance is reduced to zero (whichever occurs first). If, after
the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of such
sentence, then, except to the extent that such excess exists because of the
reimbursement of Workout-Delayed Reimbursement Amounts (from the principal
portion of P&I Advances and/or payments or other collections of principal on the
Mortgage Pool pursuant to subsection (II)(iii) of Section 3.05(a)) during any
prior Collection Period (other than those that were determined to constitute
Nonrecoverable Advances in the immediately preceding Collection Period), the
following reductions shall be made in the following order of priority: (i)
first, the Class Principal Balances of the Class A-J and Class AJ-A Certificates
shall be reduced on a pro
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rata basis in accordance with the relative sizes of such Class Principal
Balances, until such excess or the related Class Principal Balance is reduced to
zero (whichever occurs first), (ii) second, the respective Class Principal
Balances of the Class A-M and Class AM-A Certificates shall be reduced on a pro
rata basis in accordance with the relative sizes of such Class Principal
Balances, until such excess or the related Class Principal Balance is reduced to
zero (whichever occurs first), and (iii) finally, the respective Class Principal
Balances of all the outstanding Classes of the Class A Senior REMIC III Regular
Interests shall be reduced on a pro rata basis in accordance with the relative
sizes of such Class Principal Balances, until any such remaining excess is
reduced to zero. All reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates under this subsection
(a) shall constitute allocations of Realized Losses and Additional Trust Fund
Expenses.
(b) On each Distribution Date, following the deemed distributions
to be made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(i), the Certificate Administrator shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then, except to the extent that
such excess exists because of the reimbursement of Workout-Delayed Reimbursement
Amounts (from the principal portion of P&I Advances and/or payments or other
collections of principal on the Mortgage Pool pursuant to subsection (II)(iii)
of Section 3.05(a)) during the preceding Collection Period, the Uncertificated
Principal Balances of REMIC II Regular Interest S, REMIC II Regular Interest Q,
REMIC II Regular Interest P, REMIC II Regular Interest O, REMIC II Regular
Interest N, REMIC II Regular Interest M, REMIC II Regular Interest L, REMIC II
Regular Interest K-1, REMIC II Regular Interest K-2, REMIC II Regular Interest
J, REMIC II Regular Interest H-1, REMIC II Regular Interest H-2, REMIC II
Regular Interest G, REMIC II Regular Interest F-1, REMIC II Regular Interest
F-2, REMIC II Regular Interest E, REMIC II Regular Interest D-1, REMIC II
Regular Interest D-2, REMIC II Regular Interest C-1, REMIC II Regular Interest
C-2, REMIC II Regular Interest B-1 and REMIC II Regular Interest B-2 shall be
reduced sequentially, in that order, in each case, until such excess (other than
any portion thereof that exists because of the reimbursement of Workout-Delayed
Reimbursement Amounts (from the principal portion of P&I Advances and/or
payments or other collections of principal on the Mortgage Pool pursuant to
subsection (II)(iii) of Section 3.05(a)) during the preceding Collection Period)
or the related Uncertificated Principal Balance is reduced to zero (whichever
occurs first). If, after the foregoing reductions, the amount described in
clause (i) of the second preceding sentence still exceeds the amount described
in clause (ii) of such sentence, then, except to the extent that such excess
exists because of the reimbursement of Workout-Delayed Reimbursement Amounts
(from the principal portion of P&I Advances and/or payments or other collections
of principal on the Mortgage Pool pursuant to subsection (II)(iii) of Section
3.05(a)) during the preceding Collection Period, the following reductions shall
be made in the following order of priority: (i) first, the Uncertificated
Principal Balances of REMIC II Regular Interest A-J and REMIC Regular Interest
AJ-A shall be reduced on a pro rata basis, in accordance with the relative sizes
of their Uncertificated Principal Balances, until such Uncertificated Principal
Balances are reduced to zero; (ii) second, the Uncertificated Principal Balances
of REMIC II Regular Interest A-M and REMIC II Regular Interest AM-A shall be
reduced on a pro rata basis, in accordance with the relative sizes of their
Uncertificated Principal Balances, until such Uncertificated Principal Balances
are reduced to zero; and (iii) finally, (A) the amount of the Uncertificated
Principal Balance of the REMIC II Regular Interest that is the Corresponding
REMIC II Regular Interest with respect to the Class A-1 Certificates or, if (and
only if) multiple REMIC II Regular Interests are Corresponding REMIC II Regular
Interests with respect to the Class A-1 Certificates, the aggregate amount of
the Uncertificated Principal Balances of such multiple REMIC II Regular
Interests (taken as a group), (B) the amount of the Uncertificated Principal
Balance of the REMIC II Regular Interest that is the Corresponding REMIC II
Regular Interest with respect to the Class A-2 Certificates or, if (and only if)
multiple REMIC II Regular Interests are Corresponding REMIC II Regular Interests
with respect to the Class A-2 Certificates, the aggregate amount of the
Uncertificated Principal Balances of such multiple REMIC II Regular Interests
(taken as a group), (C) the amount of the Uncertificated Principal Balance of
the REMIC II Regular Interest that is the Corresponding REMIC II Regular
Interest with respect to the Class A-3 Certificates or, if (and only if)
multiple REMIC II Regular Interests are Corresponding REMIC II Regular Interests
with respect to the Class A-3 Certificates, the aggregate amount of the
Uncertificated Principal Balances of such multiple REMIC II Regular Interests
(taken as a group), (D) the amount of the Uncertificated Principal Balance of
the REMIC II Regular Interest that is the Corresponding REMIC II Regular
Interest
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with respect to the Class A-AB Certificates or, if (and only if) multiple REMIC
II Regular Interests are Corresponding REMIC II Regular Interests with respect
to the Class A-AB Certificates, the aggregate amount of the Uncertificated
Principal Balances of such multiple REMIC II Regular Interests (taken as a
group), (E) the amount of the Uncertificated Principal Balance of the REMIC II
Regular Interest that is the Corresponding REMIC II Regular Interest with
respect to the Class A-4 Certificates or, if (and only if) multiple REMIC II
Regular Interests are Corresponding REMIC II Regular Interests with respect to
the Class A-4 Certificates, the aggregate amount of the Uncertificated Principal
Balances of such multiple REMIC II Regular Interests (taken as a group) and (F)
the amount of the Uncertificated Principal Balance of the REMIC II Regular
Interest that is the Corresponding REMIC II Regular Interest with respect to the
Class A-1A Certificates or, if (and only if) multiple REMIC II Regular Interests
are Corresponding REMIC II Regular Interests with respect to the Class A-1A
Certificates, the aggregate amount of the Uncertificated Principal Balances of
such multiple REMIC II Regular Interests (taken as a group) shall be reduced on
a pro rata basis, as among such individual Corresponding REMIC II Regular
Interests and/or groups of Corresponding REMIC II Regular Interests for the
respective Classes of Class A Senior REMIC III Regular Interests, in accordance
with the relative sizes of such individual or aggregate amounts of
Uncertificated Principal Balance (that is, in each applicable case, if any,
where there are multiple REMIC II Regular Interests that are Corresponding REMIC
II Regular Interests with respect to a particular Class of the Class A Senior
REMIC III Regular Interests, such REMIC II Regular Interests shall be taken as a
group for purposes of this sentence), until any such remaining excess is reduced
to zero. Any reductions in the aggregate amount of the Uncertificated Principal
Balances of a group (if any) of REMIC II Regular Interests that are
Corresponding REMIC II Regular Interests with respect to a particular Class of
the Class A Senior REMIC III Regular Interests pursuant to the preceding
sentence shall be allocated, as between the respective individual REMIC II
Regular Interests that form such group, to reduce the individual Uncertificated
Principal Balances of such REMIC II Regular Interests sequentially in ascending
order of that portion of their alphanumeric designations that follows the
portion thereof that is the same as the alphanumeric designation of such Class
of Class A Senior REMIC III Regular Interests (for example, if (and only if) a
group of REMIC II Regular Interests consists of a "REMIC II Regular Interest
A-2-1", a "REMIC II Regular Interest A-2-2", a "REMIC Regular Interest A-2-3"
and a "REMIC Regular Interest A-2-4", first, to such "REMIC II Regular Interest
A-2-1"; second, to such "REMIC II Regular Interest A-2-2"; third, to such "REMIC
II Regular Interest A-2-3"; and, fourth, to such "REMIC II Regular Interest
A-2-4"), in each case until such Uncertificated Principal Balance is reduced to
zero. All reductions in the Uncertificated Principal Balances of the respective
REMIC II Regular Interests under this subsection (b) shall be deemed to
constitute allocations of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, if, following the deemed
distributions to be made in respect of the REMIC I Regular Interests pursuant to
Section 4.01(j), the Uncertificated Principal Balance of any REMIC I Regular
Interest, in each case after taking account of such deemed distributions,
exceeds the Stated Principal Balance of the related Pooled Mortgage Loan or REO
Pooled Mortgage Loan (or, if such REMIC I Regular Interest relates to multiple
Replacement Pooled Mortgage Loans, the aggregate Stated Principal Balance of the
related Pooled Mortgage Loans and/or REO Pooled Mortgage Loans), as the case may
be, that will be outstanding immediately following such Distribution Date, then,
except to the extent that such excess exists (taking account of the provisions
of the next succeeding sentence) because of the reimbursement of Workout-Delayed
Reimbursement Amounts (from the principal portion of P&I Advances and/or
payments or other collections of principal on the Mortgage Pool pursuant to
subsection (II)(iii) of Section 3.05(a)) during the preceding Collection Period,
the Uncertificated Principal Balance of such REMIC I Regular Interest shall be
reduced to equal such Stated Principal Balance of such related Pooled Mortgage
Loan or REO Pooled Mortgage Loan (or, if such REMIC I Regular Interest relates
to multiple Replacement Pooled Mortgage Loans, the aggregate Stated Principal
Balance of the related Pooled Mortgage Loans and/or REO Pooled Mortgage Loans),
as the case may be, that will be outstanding immediately following such
Distribution Date. For purposes of the immediately preceding sentence, the
aggregate amount excluded from the aggregate reductions of the Uncertificated
Principal Balances of the REMIC I Regular Interests collectively shall equal the
amount excluded from the reductions of the Uncertificated Principal Balances of
the REMIC II Regular Interests pursuant to subsection (b) and such aggregate
exclusion amount shall be deemed to be allocated among the REMIC I Regular
Interests pro rata according to their Stated Principal Balances that, in the
absence of such any and all such exclusions, would have been outstanding
immediately after such Distribution Date by operation of the immediately
preceding sentence. Any reductions in the Uncertificated Principal
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Balances of the respective REMIC I Regular Interests under this subsection (c)
shall be deemed to constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
SECTION 4.05. Calculations.
Provided that the Certificate Administrator receives the necessary
information from the Master Servicers and/or the Special Servicers, the
Certificate Administrator shall be responsible for performing all calculations
necessary in connection with the actual and deemed distributions to be made
pursuant to Section 4.01, the preparation of the Certificate Administrator
Reports pursuant to Section 4.02(a) and the actual and deemed allocations of
Realized Losses and Additional Trust Fund Expenses to be made pursuant to
Section 4.04. The Certificate Administrator shall calculate the Available
Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement. Absent actual
knowledge of an error therein, the Certificate Administrator shall have no
obligation to recompute, recalculate or otherwise verify any information
provided to it by a Master Servicer. The calculations by the Certificate
Administrator contemplated by this Section 4.05 shall, in the absence of
manifest error, be presumptively deemed to be correct for all purposes
hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective
forms attached hereto as Exhibits A-1 through A-3; provided that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03, beneficial ownership interests in each Class of Interest Only
Certificates and Principal Balance Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The Principal
Balance Certificates and Interest Only Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances or initial
Certificate Notional Amounts, as the case may be, as of the Closing Date of
$25,000 in the case of each Class of Principal Balance Certificates and $250,000
in the case of each Class of Interest Only Certificates, and in each such case
in integral multiples of $1 in excess thereof. The Class R and Class V
Certificates will be issuable in denominations representing Percentage Interests
in the related Class of not less than 10%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Certificate Administrator is hereby initially appointed (and hereby agrees
to act in accordance with the terms hereof) as Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Trustee, the Depositor, the Master Servicers, the
Special Servicers and (if the Certificate Administrator is not the Certificate
Registrar) the Certificate Administrator, any other bank or trust company to act
as Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the predecessor Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment. If the Certificate Administrator resigns or is
removed in accordance with the terms hereof, the successor certificate
administrator shall immediately succeed to its duties as Certificate Registrar.
The Depositor, the Trustee, the Certificate Administrator (if it is not the
Certificate Registrar), each Master Servicer and each Special Servicer shall
each have the right to inspect the Certificate Register or to obtain a copy
thereof at all reasonable times, and to rely conclusively upon a certificate of
the Certificate Registrar as to the information set forth in the Certificate
Register.
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If three or more Holders make written request to the Certificate
Registrar, and such request states that such Holders desire to communicate with
other Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Holders propose to transmit, then the Certificate Registrar shall, within 30
days after the receipt of such request, afford (or cause any other Certificate
Registrar to afford) the requesting Holders access during normal business hours
to the most recent list of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest
therein shall be made unless that Transfer is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable
securities or blue sky laws of any state or other jurisdiction within the United
States, its territories and possessions, or is otherwise made in accordance with
the Securities Act and such other securities or blue sky laws. If offers and
sales of any Certificate are made in any jurisdiction outside of the United
States, its territories and possessions, the Person making such offers and sales
must comply with all applicable laws of such jurisdiction.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Non-Registered Certificates or a Transfer of
such Certificate by the Depositor, any Underwriter or any of their respective
Affiliates or, in the case of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates, a Transfer thereof to a successor Depository or to
the applicable Certificate Owner(s) in accordance with Section 5.03), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached hereto as Exhibit F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or as Exhibit F-2B (except that, in the case of any proposed
transfer of a Class R Certificate or a Class V Certificate, such prospective
Transferee may provide a certificate substantially in the form attached hereto
as Exhibit F-2A only); or (ii) an Opinion of Counsel satisfactory to the
Certificate Administrator to the effect that such prospective Transferee is an
Institutional Accredited Investor or a Qualified Institutional Buyer (except
that, in the case of any proposed transfer of a Class R Certificate or a Class V
Certificate, such Opinion of Counsel must be to the effect that such prospective
Transferee is a Qualified Institutional Buyer) and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, either Master Servicer,
any Special Servicer, the Tax Administrator, the Certificate Administrator, the
Trustee or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
Transfer from the Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
If a Transfer of any interest in the Rule 144A Global Certificate
for any Class of Book-Entry Non-Registered Certificates is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Book-Entry Non-Registered Certificates or a Transfer of any
interest therein by the Depositor, any Underwriter or any of their respective
Affiliates), then the Certificate Owner desiring to effect such Transfer shall
be required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit
F-2C, or (ii) an Opinion of Counsel to the effect that the prospective
Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act. Except as provided in the
following two paragraphs, no interest in the Rule 144A Global Certificate for
any Class of Book-Entry Non-Registered Certificates shall be transferred to any
Person who takes delivery other than in the form of an interest in such Rule
144A Global Certificate. If any Transferee of an interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates does
not, in connection with the subject Transfer, deliver to the Transferor the
Opinion of Counsel or the certification described in the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that all
the certifications set forth in Exhibit F-2C hereto are, with respect to the
subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule
144A Global Certificate for a Class of Book-Entry Non-Registered Certificates
may be transferred (without delivery of any certificate or Opinion of Counsel
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described in clauses (i) and (ii) of the first sentence of the preceding
paragraph) by the Depositor, any Affiliate of the Depositor or any Person
designated in writing by the Depositor to any Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate for such
Class of Certificates upon delivery to the Certificate Registrar of (x) a
certificate to the effect that the Certificate Owner desiring to effect such
Transfer is the Depositor or an Affiliate of the Depositor and (y) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and Euroclear to direct the Certificate Administrator to
debit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in such Regulation S Global
Certificate, that is equal to the denomination of beneficial interests in the
Book-Entry Non-Registered Certificates to be transferred. Upon delivery to the
Certificate Registrar of such certification and such orders and instructions,
the Certificate Administrator, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Rule 144A
Global Certificate in respect of the applicable Class of Book-Entry
Non-Registered Certificates and increase the denomination of the Regulation S
Global Certificate for such Class, by the denomination of the beneficial
interest in such Class specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Rule 144A
Global Certificate with respect to any Class of Book-Entry Non-Registered
Certificates may be transferred by any Certificate Owner holding such interest
to any Institutional Accredited Investor (other than a Qualified Institutional
Buyer) that takes delivery in the form of a Definitive Certificate of the same
Class as such Rule 144A Global Certificate upon delivery to the Certificate
Registrar and the Certificate Administrator of (i) such certifications and/or
opinions as are contemplated by the second paragraph of this Section 5.02(b) and
(ii) such written orders and instructions as are required under the applicable
procedures of the Depository to direct the Certificate Administrator to debit
the account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of the certifications and/or opinions contemplated by the second
paragraph of this Section 5.02(b), the Certificate Administrator, subject to and
in accordance with the applicable procedures of the Depository, shall reduce the
denomination of the subject Rule 144A Global Certificate by the denomination of
the transferred interests in such Rule 144A Global Certificate, and shall cause
a Definitive Certificate of the same Class as such Rule 144A Global Certificate,
and in a denomination equal to the reduction in the denomination of such Rule
144A Global Certificate, to be executed, authenticated and delivered in
accordance with this Agreement to the applicable Transferee.
Except as provided in the next paragraph, no beneficial interest in
the Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D hereto certifying that such Transferee is not a United States
Securities Person. On or prior to the Release Date, beneficial interests in the
Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates may be held only through Euroclear or Clearstream. The Regulation S
Global Certificate for each Class of Book-Entry Non-Registered Certificates
shall be deposited with the Certificate Administrator as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in the Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor, any Affiliate
of the Depositor or any Person designated in writing by the Depositor to any
Person who takes delivery in the form of a beneficial interest in the Rule 144A
Global Certificate for such Class of Certificates upon delivery to the
Certificate Registrar of (x) a certificate to the effect that the Certificate
Owner desiring to effect such Transfer is the Depositor or an Affiliate of the
Depositor and (y) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and Euroclear to direct the
Certificate Administrator to debit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, and credit
the account of a Depository Participant by a denomination of interests in such
Rule 144A Global Certificate, that is equal to the denomination of beneficial
interests in such Class of Book-Entry Non-Registered Certificates to be
transferred. Upon delivery to the
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Certificate Registrar of such certification and orders and instructions, the
Certificate Administrator, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Regulation S
Global Certificate in respect of such Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Rule 144A Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
None of the Depositor, the Underwriters, the Certificate
Administrator, the Trustee, the Master Servicers, the Special Servicers, the Tax
Administrator or the Certificate Registrar is obligated to register or qualify
any Class of Non-Registered Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the Transfer of any Non-Registered Certificate or interest therein
without registration or qualification. Any Certificateholder or Certificate
Owner desiring to effect a Transfer of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor, the
Underwriters, the Certificate Administrator, the Trustee, each Master Servicer,
each Special Servicer, the Tax Administrator and the Certificate Registrar
against any liability that may result if such Transfer is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
(c) No Transfer of a Certificate or any interest therein shall be
made (A) to any Plan or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan, if the purchase and holding of such
Certificate or interest therein by the prospective Transferee would result in a
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or would
result in the imposition of an excise tax under Section 4975 of the Code. Except
in connection with the initial issuance of the Non-Registered Certificates or
any Transfer of a Non-Registered Certificate or any interest therein by the
Depositor, any Underwriter or any of their respective Affiliates or, in the case
of a Global Certificate for any Class of Book-Entry Non-Registered Certificates,
any Transfer thereof to a successor Depository or to the applicable Certificate
Owner(s) in accordance with Section 5.03, the Certificate Registrar shall refuse
to register the Transfer of a Definitive Non-Registered Certificate unless it
has received from the prospective Transferee, and any Certificate Owner
transferring an interest in a Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from its prospective
Transferee, either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) alternatively, but only in the case of a
Certificate that is not a Class R or Class V Certificate, a certification to the
effect that the purchase and holding of such Certificate or interest therein by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code, by reason of
Sections I and III of PTCE 95-60; or (iii) alternatively, but only in the case
of a Non-Registered Certificate that is an Investment Grade Certificate (other
than, if applicable, a Class R or Class V Certificate) that is being acquired by
or on behalf of a Plan in reliance on the Underwriter Exemption, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Certificate
Administrator, the Depositor, any Pooled Mortgage Loan Seller, either Master
Servicer, any Special Servicer, either Primary Servicer, any Sub-Servicer, any
Person responsible for the servicing of a Non-Trust-Serviced Pooled Mortgage
Loan, any Exemption Favored Party or any Borrower with respect to Pooled
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Pooled Mortgage Loans determined as of the Closing Date, or
by any Affiliate of such Person, and (Z) agrees that it will obtain from each of
its Transferees a written certification described in clause (i) above, a written
certification described in clause (ii) above or a written representation that
such Transferee satisfies the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y), together with a written agreement that such Transferee
will obtain from each of its Transferees a similar written certification or
representation. It is hereby acknowledged that the forms of certification
attached hereto as Exhibit G-1 (in the case of Definitive Non-Registered
Certificates) and Exhibit G-2 (in the case of ownership interests in Book-Entry
Non-Registered Certificates) are acceptable for purposes of the preceding
sentence. In lieu of one of the foregoing certifications, a prospective
Transferee may deliver to the Certificate Registrar a certification of facts and
an Opinion of Counsel which establish to the reasonable satisfaction of the
Trustee that such Transfer will not result in a violation of
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Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code, and will not subject the Trustee,
the Depositor, the Certificate Administrator, a Master Servicer, a Special
Servicer, a Primary Servicer or a Sub-Servicer to any obligation in addition to
those undertaken in this Agreement; in the case of an ownership interest in a
Book-Entry Non-Registered Certificate, the prospective Transferee shall also
deliver to the Certificate Owner from whom it is acquiring the interest a copy
of such certification of facts and Opinion of Counsel, and a certification that
these documents have been delivered to the Certificate Registrar. If any
Transferee of a Certificate (including a Registered Certificate) or any interest
therein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar (in the case of a Definitive Certificate) or the
Transferor (in the case of ownership interests in a Book-Entry Certificate) any
certification and/or Opinion of Counsel contemplated by the second preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) the purchase and holding of
such Certificate or interest therein by such Transferee are exempt from the
prohibited transaction provisions of Sections 406(a) and (b) and 407 of ERISA
and the excise taxes imposed on such prohibited transactions by Sections 4975(a)
and (b) of the Code by reason of an Underwriter Exemption (in the case of such a
Certificate that is an Investment Grade Certificate) or by reason of Sections I
and III of PTCE 95-60 (in the case of such a Certificate that is not an
Investment Grade Certificate).
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Class R Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Certificate
Administrator under clause (ii) (A) below to deliver payments to a Person other
than such Person and to have irrevocably authorized the Certificate
Administrator under clause (ii) (B) below to negotiate the terms of any
mandatory disposition and to execute all instruments of Transfer and to do all
other things necessary in connection with any such disposition. The rights of
each Person acquiring any Ownership Interest in a Class R Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall be a Permitted
Transferee and shall promptly notify the Tax
Administrator and the Certificate Administrator of any
change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Class R Certificate, the
Certificate Registrar shall require delivery to it,
and shall not register the Transfer of any Class R
Certificate until its receipt, of an affidavit and
agreement substantially in the form attached hereto as
Exhibit H-1 (a "Transfer Affidavit and Agreement"),
from the proposed Transferee, representing and
warranting, among other things, that such Transferee
is a Permitted Transferee, that it is not acquiring
its Ownership Interest in the Class R Certificate that
is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a
Permitted Transferee.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause
(B) above, if a Responsible Officer of either the
Certificate Administrator or the Certificate Registrar
has actual knowledge that the proposed Transferee is
not a Permitted Transferee, no Transfer of an
Ownership Interest in a Class R Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (1) to
require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to
Transfer its Ownership Interest in such Class R
Certificate and (2) not to Transfer its Ownership
Interest in such Class R Certificate unless it
provides to the Certificate Registrar a certificate
substantially in the form
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attached hereto as Exhibit H-2 stating that, among
other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest
in a Class R Certificate, by purchasing such Ownership
Interest, agrees to give the Tax Administrator and the
Certificate Administrator written notice that it is a
"pass-through interest holder" within the meaning of
temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R Certificate, if it is,
or is holding an Ownership Interest in a Class R
Certificate on behalf of, a "pass-through interest
holder".
(ii) (A) If any purported Transferee shall become a Holder
of a Class R Certificate in violation of the
provisions of this Section 5.02(d), then the last
preceding Holder of such Class R Certificate that was
in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by
law, to all rights as Holder thereof retroactive to
the date of registration of such Transfer of such
Class R Certificate. None of the Depositor, the
Certificate Administrator, the Trustee or the
Certificate Registrar shall be under any liability to
any Person for any registration of Transfer of a Class
R Certificate that is in fact not permitted by this
Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any
other action with respect to such Holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Class R Certificate in violation of the restrictions
in this Section 5.02(d), then, to the extent that
retroactive restoration of the rights of the preceding
Holder of such Class R Certificate as described in
clause (ii)(A) above shall be invalid, illegal or
unenforceable, the Certificate Administrator shall
have the right, but not the obligation, to cause the
Transfer of such Class R Certificate to a Permitted
Transferee selected by the Certificate Administrator
on such terms as the Certificate Administrator may
choose, and the Certificate Administrator shall not be
liable to any Person having an Ownership Interest in
such Class R Certificate as a result of the
Certificate Administrator's exercise of such
discretion. Such purported Transferee shall promptly
endorse and deliver such Class R Certificate in
accordance with the instructions of the Certificate
Administrator. Such Permitted Transferee may be the
Certificate Administrator itself or any Affiliate of
the Certificate Administrator.
(iii) The Tax Administrator shall make available to the IRS
and to those Persons specified by the REMIC Provisions all information
furnished to it by the other parties hereto necessary to compute any tax
imposed (A) as a result of the Transfer of an Ownership Interest in a
Class R Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such Class R Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of
the Code that holds an Ownership Interest in a Class R Certificate having
as among its record holders at any time any Person which is a Disqualified
Organization, and each of the other parties hereto shall furnish to the
Tax Administrator all information in its possession necessary for the Tax
Administrator to discharge such obligation. The Person holding such
Ownership Interest shall be responsible for the reasonable compensation of
the Tax Administrator for providing information thereto pursuant to this
subsection (d)(iii) and Section 10.01(d)(i).
(iv) The provisions of this Section 5.02(d) set forth prior
to this clause (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Certificate Administrator and the
Tax Administrator the following:
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(A) written confirmation from each Rating Agency to
the effect that the modification of, addition to
or elimination of such provisions will not cause
an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Administrator
and the Tax Administrator, obtained at the
expense of the party seeking such modification
of, addition to or elimination of such
provisions (but in no event at the expense of
the Trustee, the Tax Administrator or the
Trust), to the effect that doing so will not (1)
cause any REMIC Pool to cease to qualify as a
REMIC or be subject to an entity-level tax
caused by the Transfer of any Class R
Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the
prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a
Class R Certificate to a Person that is not a
Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Certificate Administrator
(or such Certificate Owner) to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
applicable foregoing acknowledgments, representations, warranties,
certifications and agreements with respect to each such account as set forth in
Subsections (b), (c) and/or (d), as appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02,
upon surrender for registration of transfer of any Certificate at the offices of
the Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class in authorized denominations evidencing a like
aggregate Percentage Interest in such Class.
(g) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
evidencing a like aggregate Percentage Interest in such Class upon surrender of
the Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Certificate Administrator or Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange
shall be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall dispose of such canceled Certificates in accordance with its
standard procedures.
(k) In connection with the foregoing Sections 5.02(b), (c) and
(d), in no case shall the Depositor be responsible for the costs or expenses of
any certificates, opinions or agreements contemplated by such Sections 5.02(b),
(c) and (d).
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SECTION 5.03. Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4,
Class A-1A, Class X-1, Class X-2, Class A-M, Class AM-A, Class A-J, Class AJ-A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S Certificates
shall, in the case of each such Class, initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.02(b) and Section 5.03(c), a Transfer of such
Certificates may not be registered by the Certificate Registrar unless such
Transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and Transfer their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided in Section 5.03(c) below, shall not be entitled to
definitive, fully registered Certificates ("Definitive Certificates") in respect
of such Ownership Interests. The Classes of Non-Registered Certificates
initially sold to Qualified Institutional Buyers in reliance on Rule 144A or in
reliance on another exemption from the registration requirements of the
Securities Act shall, in the case of each such Class, be represented by the Rule
144A Global Certificate for such Class, which shall be deposited with the
Certificate Administrator as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository. The Classes of Non-Registered
Certificates initially sold in offshore transactions in reliance on Regulation S
shall, in the case of each such Class, be represented by the Regulation S Global
Certificate for such Class, which shall be deposited with the Certificate
Administrator as custodian for the Depository and registered in the name of Cede
& Co. as nominee of the Depository. All Transfers by Certificate Owners of their
respective Ownership Interests in the Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing each such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Certificate Administrator, the Master Servicers, the
Special Servicers, the Trustee, the Depositor and the Certificate Registrar may
for all purposes, including the making of payments due on the Book-Entry
Certificates, deal with the Depository as the authorized representative of the
Certificate Owners with respect to such Certificates for the purposes of
exercising the rights of Certificateholders hereunder. Except as expressly
provided to the contrary herein, the rights of Certificate Owners with respect
to the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Certificate Administrator may establish a reasonable record date in connection
with solicitations of consents from or voting by Certificateholders and shall
give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Certificate Administrator,
the Trustee and the Certificate Registrar in writing that the Depository is no
longer willing or able to properly discharge its responsibilities with respect
to a Class of the Book-Entry Certificates, and (B) the Depositor is unable to
locate a qualified successor, or (ii) the Depositor at its option advises the
Trustee, the Certificate Administrator and the Certificate Registrar in writing
that it elects to terminate the book-entry system through the Depository with
respect to a Class of Book-Entry Certificates, the Certificate Registrar shall
notify all affected Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicers, the Special Servicers, the Certificate Administrator, the Trustee or
the Certificate Registrar shall be liable for any delay in delivery of such
instructions, and each of them may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of Definitive Certificates
for purposes of evidencing ownership of any Class of
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Registered Certificates, the registered holders of such Definitive Certificates
shall be recognized as Certificateholders hereunder and, accordingly, shall be
entitled directly to receive payments on, to exercise Voting Rights with respect
to, and to transfer and exchange such Definitive Certificates.
(d) Notwithstanding any other provisions contained herein,
neither the Certificate Administrator nor the Certificate Registrar shall have
any responsibility whatsoever to monitor or restrict the Transfer of ownership
interests in any Certificate (including but not limited to any Non-Registered
Certificate) which interests are transferable through the book-entry facilities
of the Depository.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Administrator and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Certificate Administrator or the
Certificate Registrar that such Certificate has been acquired by a bona fide
purchaser, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class and like Percentage Interest. Upon the issuance of any new Certificate
under this Section, the Certificate Administrator and the Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Certificate Administrator and
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section shall constitute complete and indefeasible
evidence of ownership in the applicable REMIC created hereunder, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicers, the Special Servicers, the Certificate
Administrator, the Trustee, the Certificate Registrar and any agent of any of
them may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever and none of the Depositor,
the Master Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any agent of any of them shall be affected by notice to the
contrary.
SECTION 5.06. Certification by Certificate Owners.
To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the
Certificate Administrator shall make such determination based on a certificate
of such Person which shall be substantially in the form of paragraph 1 of
Exhibit K-1 hereto (or such other form as shall be reasonably acceptable to the
Certificate Administrator) and shall specify the Class and Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of the Book-Entry
Certificate beneficially owned; provided, however, that none of the Trustee, the
Certificate Administrator or the Certificate Registrar shall knowingly recognize
such Person as a Certificate Owner if such Person, to the actual knowledge of a
Responsible Officer of the Trustee, the Certificate Administrator or the
Certificate Registrar, as the case may be, acquired its Ownership Interest in a
Book-Entry Certificate in violation of Section 5.02(c), or if such Person's
certification that it is a Certificate Owner is in direct conflict with
information actually known by a Responsible Officer of the Trustee, the
Certificate Administrator or the Certificate Registrar, with respect to the
identity of a Certificate Owner. The Trustee, the Certificate Administrator and
the Certificate Registrar shall each exercise its reasonable discretion in
making any determination under this Section 5.06(b) and shall afford any Person
providing information with respect to its beneficial ownership of any Book-Entry
Certificate an opportunity to resolve any discrepancies between the information
provided and any other information available to the Trustee, the Certificate
Administrator or the Certificate Registrar, as the case may be.
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SECTION 5.07. Appointment of Authenticating Agents.
(a) The Certificate Administrator may appoint at its expense an
Authenticating Agent, which shall be authorized to act on behalf of the
Certificate Administrator in authenticating Certificates. The Certificate
Administrator shall cause any such Authenticating Agent to execute and deliver
to the Certificate Administrator an instrument in which such Authenticating
Agent shall agree to act in such capacity, with the obligations and
responsibilities herein. Each Authenticating Agent must be organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Certificate Administrator hereunder.
The appointment of an Authenticating Agent shall not relieve the Certificate
Administrator from any of its obligations hereunder, and the Certificate
Administrator shall remain responsible for all acts and omissions of the
Authenticating Agent. In the absence of any other Person appointed in accordance
herewith acting as Authenticating Agent, the Certificate Administrator hereby
agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Certificate
Administrator is no longer the Authenticating Agent, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Authenticating Agent shall be construed to require that such
notice, information or documentation also be provided to the Certificate
Administrator.
(b) Any Person into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion, or consolidation to which any Authenticating Agent shall
be a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this
Section 5.07 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Certificate Administrator, the Trustee, the
Certificate Registrar and the Depositor. The Certificate Administrator may at
any time terminate the agency of any Authenticating Agent appointed in
accordance with this Section 5.07 by giving written notice of termination to
such Authenticating Agent, the Trustee, the Certificate Registrar and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 5.07, the Certificate
Administrator may appoint a successor Authenticating Agent, in which case the
Certificate Administrator shall give written notice of such appointment to the
Trustee, the Certificate Registrar and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 5.07. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS
AND THE SPECIAL SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers, the
Primary Servicers and the Special Servicers.
The Depositor, the Master Servicers, the Primary Servicers and the
Special Servicers shall be liable in accordance herewith only to the extent of
the respective obligations specifically imposed upon and undertaken by the
Depositor, each Master Servicer, each Primary Servicer and each Special Servicer
(but this shall not be construed to limit the terms of a Primary Servicing
Agreement as between the applicable Master Servicer and the applicable Primary
Servicer).
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
a Master Servicer or the Special Servicer.
(a) Subject to Section 6.02(b), the Depositor, the Master
Servicers and the Special Servicers shall each keep in full effect its
existence, rights and franchises as a corporation, bank, trust company,
partnership, limited liability company, association or other legal entity under
the laws of the jurisdiction wherein it was organized, and each shall obtain and
preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
(b) Each of the Depositor, the Master Servicers and the
Special Servicers may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, a
Master Servicer or a Special Servicer shall be a party, or any Person succeeding
to the business of the Depositor, a Master Servicer, a Special Servicer, shall
be the successor of the Depositor, such Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of either Master Servicer or a Special
Servicer unless (i) such succession will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency for the Rated Certificates) and, solely with
respect to the applicable Master Servicer or applicable Special Servicer for any
Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari
Passu Companion Loans for which any Non-Pooled Pari Passu Companion Loan
Securities are outstanding, if such Serviced Mortgage Loan Group is then
serviced and administered under this Agreement, will not result in an Adverse
Rating Event with respect to any class of the related Non-Pooled Pari Passu
Companion Loan Securities (as confirmed in writing to the Trustee by each
applicable Rating Agency for such Non-Pooled Pari Passu Companion Loan
Securities), as applicable, and (ii) such successor or surviving Person makes
the applicable representations and warranties set forth in Section 2.05 (in the
case of a successor or surviving Person to PAR as a Master Servicer), Section
2.06 (in the case of a successor or surviving Person to WFB as a Master
Servicers), Section 2.07 (in the case of a successor or surviving Person to the
General Special Servicer), as applicable or Section 2.08 (in the case of a
successor or surviving Person to a Loan Specific Special Servicer).
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicers, the Primary Servicers and the Special
Servicers.
(a) None of the Depositor, the Master Servicers, the Primary
Servicers or the Special Servicers shall be under any liability to the Trust,
the Trustee, the Certificateholders or any Serviced Non-Pooled Mortgage Loan
Noteholder for any action taken or not taken in good faith pursuant to this
Agreement or for errors in judgment; provided,
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however, that this provision shall not protect the Depositor, a Master Servicer,
a Primary Servicer or a Special Servicer against any liability to the Trust, the
Trustee, the Certificateholders or any Serviced Non-Pooled Mortgage Loan
Noteholder for the breach of a representation or warranty made by such party
herein, or against any expense or liability specifically required to be borne by
such party without right of reimbursement pursuant to the terms hereof, or
against any liability which would otherwise be imposed by reason of malfeasance,
bad faith or negligence in the performance of, or negligent disregard of, such
party's obligations or duties hereunder. The Depositor, each Master Servicer,
each Primary Servicer, each Special Servicer and any director, member, manager,
officer, employee or agent of any such party may rely in good faith on any
document of any kind conforming to the requirements of this Agreement for the
truth and accuracy of the contents of that document (and as to certificates and
opinions, including Opinions of Counsel, for the truth of the statements made
therein and the correctness of the opinions expressed therein) reasonably
believed or in good faith believed by it to be genuine and to have been signed
or presented by the proper party or parties, which document, prima facie, is
properly executed and submitted by any Person, or any employee or agent of any
Person (including legal counsel as to opinions), respecting any matters arising
hereunder. The Depositor, each Master Servicer, each Primary Servicer, each
Special Servicer (each in its capacity as such or in its individual capacity)
and any director, member, manager, officer, employee or agent of any such party,
shall be indemnified and held harmless by the Trust out of the relevant
Collection Account, as provided in Section 3.05(a), or the Distribution Account,
as provided in Section 3.05(b), against any loss, liability, cost or expense
(including reasonable legal fees and expenses) incurred in connection with any
legal action or claim relating to this Agreement or the Certificates, other than
any loss, liability, cost or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof; (ii) that constitutes a Servicing Advance
that is otherwise reimbursable under this Agreement; or (iii) incurred in
connection with any legal action or claim against such party resulting from any
breach of a representation or warranty made herein, any malfeasance, bad faith
or negligence in the performance of, or negligent disregard of, obligations or
duties hereunder or any willful or negligent violation of applicable law. None
of the Depositor, the Master Servicers, the Primary Servicer or the Special
Servicers shall be under any obligation to appear in, prosecute or defend any
legal action unless such action is related to its respective duties under this
Agreement and, except in the case of a legal action the costs of which such
party is specifically required hereunder to bear, in its opinion does not
involve it in any ultimate expense or liability for which it would not be
reimbursed hereunder; provided, however, that the Depositor, a Master Servicer,
a Primary Servicer or a Special Servicer may in its discretion undertake any
such action which it may reasonably deem necessary or desirable with respect to
the enforcement and/or protection of the rights and duties of the parties hereto
and the interests of the Certificateholders (or, if a Serviced Mortgage Loan
Group is involved, the rights of the Certificateholders and the related Serviced
Non-Pooled Mortgage Loan Noteholder(s) (as a collective whole)). In such event,
the legal expenses and costs of such action, and any liability resulting
therefrom, shall be expenses, costs and liabilities of the Trust, and the
Depositor, such Master Servicer, such Primary Servicer or such Special Servicer,
as the case may be, shall be entitled to be reimbursed therefor from the
relevant Collection Account, as provided in Section 3.05(a), or the Distribution
Account, as provided in Section 3.05(b).
Notwithstanding the foregoing, if and to the extent that any loss,
liability, cost or expense that is, pursuant to this Section 6.03(a), required
to be borne by the Trust out of the Distribution Account or a Collection
Account, relates to any Serviced Mortgage Loan Group, (i) such loss, liability,
cost or expense shall be payable out of amounts on deposit in the relevant
Collection Account, any related Companion Note Custodial Account(s) and any
related Subordinate Note Custodial Account(s) collectively, prior to payment
from funds in the Distribution Account or a Collection Account that are
unrelated to such Serviced Mortgage Loan Group; (ii) if such Serviced Mortgage
Loan Group includes one or more Serviced Non-Pooled Subordinate Loans, such
loss, liability, cost or expense shall be payable out of amounts on deposit in
the related Subordinate Note Custodial Account and shall be payable out of the
Distribution Account or a Collection Account or Companion Note Custodial Account
only to the extent that amounts recoverable on the related Serviced Non-Pooled
Subordinate Loan(s) are insufficient to cover the portion of such loss,
liability, cost or expense so payable out of the related Subordinate Note
Custodial Account; and (iii) if such Serviced Mortgage Loan Group includes one
or more Serviced Non-Pooled Pari Passu Companion Loans, such loss, liability,
cost or expense shall be payable out of amounts on deposit in the relevant
Collection Account and the related Companion Note Custodial Account(s)
(withdrawals from those accounts to be made in accordance with the related
Mortgage Loan Group Intercreditor Agreement and pro rata according to the
respective outstanding principal balances of the Pooled Mortgage Loan and such
Serviced Non-Pooled Pari Passu Companion Loans included in such Serviced
Mortgage Loan Group).
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(b) In addition, none of the Master Servicers, the Primary
Servicer and the Special Servicers shall have any liability with respect to, and
each of the Master Servicers, the Primary Servicer and the Special Servicers
shall be entitled to rely, as to the truth of the statements made therein and
the correctness of the opinions expressed therein, on any certificates or
opinions furnished to, and accepted in good faith by, such Master Servicer, such
Primary Servicer or such Special Servicer, as the case may be, and conforming to
the requirements of this Agreement. Each of the Master Servicers, the Primary
Servicers and the Special Servicers may rely in good faith on information
provided to it by the other parties hereto (unless the provider and the
recipient of such information are the same Person or Affiliates) and by the
Borrowers and property managers, and will have no duty to investigate or verify
the accuracy thereof. Each of the Master Servicers and the Special Servicers may
rely, and shall be protected in acting or refraining from acting upon, any
resolution, officer's certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, financial statement, agreement, appraisal, bond or other document (in
electronic or paper format) as contemplated by and in accordance with this
Agreement and reasonably believed or in good faith believed by such Master
Servicer, such Primary Servicer or such Special Servicer, as the case may be, to
be genuine and to have been signed or presented by the proper party or parties
and each of them may consult with counsel, in which case any written advice of
counsel or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel. Furthermore, none of the Master Servicers, the Primary Servicers and
the Special Servicers shall have any liability under this Agreement for any
failure of any other such Person (or any other party to this Agreement) to
perform such Person's obligations or duties hereunder.
SECTION 6.04. Resignation of the Master Servicers and the Special
Servicers.
(a) Each of the Master Servicers and the Special Servicers may
resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of such Master Servicer
or such Special Servicer, as the case may be, so causing such a conflict being
of a type and nature carried on by such Master Servicer or such Special
Servicer, as the case may be, at the date of this Agreement). Any such
determination requiring the resignation of a Master Servicer or a Special
Servicer shall be evidenced by an Opinion of Counsel to such effect which shall
be delivered to the Trustee, with a copy to the Certificate Administrator and
the Controlling Class Representative (and each affected Serviced Non-Pooled
Mortgage Loan Noteholder). Unless applicable law requires the resignation of a
Master Servicer or a Special Servicer (as the case may be) to be effective
immediately, and the Opinion of Counsel delivered pursuant to the prior sentence
so states, no such resignation shall become effective until the Trustee or other
successor shall have assumed the responsibilities and obligations of the
resigning party in accordance with Section 3.25 or Section 7.02 hereof; provided
that, if no successor to such Master Servicer or such Special Servicer, as the
case may be, shall have been so appointed and have accepted appointment within
90 days after such Master Servicer or such Special Servicer, as the case may be,
has given notice of such resignation, the resigning Master Servicer or Special
Servicer, as the case may be, may petition any court of competent jurisdiction
for the appointment of a successor thereto.
(b) In addition, each of the Master Servicers and the Special
Servicers shall have the right to resign at any other time, provided that (i) a
willing successor thereto (including any such successor proposed by the
resigning party) has been found that is (a) reasonably acceptable to the
Trustee, (b) solely in the case of a successor to a Master Servicer, reasonably
acceptable to the Controlling Class Representative in its discretion (unless
such successor has a master servicer rating from Fitch that is equal to or
greater than "CMS2" or such successor is the other Master Servicer), (c) solely
in the case of a Loan Specific Special Servicer if it is a resigning Special
Servicer, acceptable to the related Serviced Mortgage Loan Group Controlling
Party in its discretion and (d) solely in the case of the General Special
Servicer if it is a resigning Special Servicer, acceptable to the Controlling
Class Representative in its discretion, (ii) the resigning party has consulted
with (although, except as provided for above, it shall not be required to have
obtained the approval of) the Controlling Class Representative with respect to
the identity and quality of its proposed successor unless such successor is the
other Master Servicer, (iii) the succession will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency for the Rated Certificates)
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and, in the case of the applicable Master Servicer or applicable Special
Servicer for each Serviced Mortgage Loan Group that includes one or more
Serviced Non-Pooled Pari Passu Companion Loans for which any Non-Pooled Pari
Passu Companion Loan Securities are then outstanding, if such Serviced Mortgage
Loan Group is then serviced and administered under this Agreement, will not
result in an Adverse Rating Event with respect to any class of such Non-Pooled
Pari Passu Companion Loan Securities (as confirmed in writing to the Trustee by
each applicable Rating Agency for such Non-Pooled Pari Passu Companion Loan
Securities), (iv) the resigning party pays all costs and expenses in connection
with such transfer, (v) the successor accepts appointment in writing prior to
the effectiveness of such resignation and (vi) the successor affirms its
assumption of the obligations of the resigning Master Servicer under the Primary
Servicing Agreements.
(c) None of the Master Servicers and the Special Servicers shall
be permitted to resign except as contemplated in subsections (a) and (b) of this
Section 6.04. Consistent with the foregoing, none of the Master Servicers and
the Special Servicers shall (except in connection with any resignation thereby
permitted above in this Section 6.04 or as otherwise expressly provided herein,
including the provisions of Section 3.11(a), Section 3.22 and/or Section 6.02)
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or delegate to, subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
it hereunder. If, pursuant to any provision hereof, the duties of a Master
Servicer or a Special Servicer are transferred to a successor thereto, the
entire amount of compensation payable to such Master Servicer (including without
limitation, in the case of the Master Servicer that is the Servicer Report
Administrator, the Servicer Report Administrator Fee) or such Special Servicer,
as the case may be, that accrues pursuant hereto from and after the date of such
transfer shall be payable to such successor, except (in the case of the Special
Servicer) to the extent provided in Section 3.11(c).
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of
the Master Servicers and the Special Servicers.
Each of the Master Servicers and the Special Servicers shall afford
the Depositor and the Trustee, upon reasonable notice, during normal business
hours access to all records maintained by it in respect of its rights and
obligations hereunder and access to such of its officers as are responsible for
such obligations. Upon reasonable request and as reasonably related to the
performance of the obligations of the Master Servicers and the Special Servicer,
as applicable, pursuant to this Agreement, each of the Master Servicers and the
Special Servicers shall furnish the Depositor and the Trustee with its most
recent publicly available annual audited financial statements (or, if not
available, the most recent publicly available audited annual financial
statements of its corporate parent) and such other information as is publicly
available regarding its business, affairs, property and condition, financial or
otherwise. Each of the Master Servicers and the Special Servicers may affix to
any such information described in this Section 6.05 provided by it any
disclaimer it deems appropriate in its reasonable discretion. The Depositor may,
but is not obligated to, enforce the obligations of any Master Servicer or
Special Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of any Master Servicer or a
Special Servicer hereunder or exercise the rights of a Master Servicer or a
Special Servicer hereunder; provided, however, that none of the Master Servicers
and the Special Servicers shall be relieved of any of its obligations hereunder
by virtue of such performance by the Depositor or its designee. The Depositor
shall not have any responsibility or liability for any action or failure to act
by a Master Servicer or a Special Servicer and is not obligated to supervise the
performance of any Master Servicer or Special Servicer under this Agreement or
otherwise.
SECTION 6.06. Master Servicers, the Primary Servicers and Special
Servicers May Own Certificates.
Any Master Servicer, Primary Servicer, Special Servicer or Affiliate
thereof may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not a Master Servicer, a Special Servicer or an Affiliate thereof. If,
at any time during which any Master Servicer, Special Servicer or Affiliate of a
Master Servicer or a Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, such
Master Servicer or such Special Servicer, as the case may be, proposes to take
any action
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(including for this purpose, omitting to take a particular action) that is not
expressly prohibited by the terms hereof and would not, in the reasonable
judgment of such Master Servicer or such Special Servicer (as the case may be),
violate the Servicing Standard, but that, if taken, might nonetheless, in the
reasonable judgment of such Master Servicer or such Special Servicer (as the
case may be), be considered by other Persons to violate the Servicing Standard,
then such Master Servicer or such Special Servicer, as the case may be, may (but
need not) seek the approval of the Certificateholders to such action by
delivering to the Certificate Administrator (with a copy to the Trustee) a
written notice that (a) states that it is delivered pursuant to this Section
6.06, (b) identifies the Percentage Interest in each Class of Certificates
beneficially owned by such Master Servicer or such Special Servicer, as the case
may be, or by an Affiliate thereof and (c) describes in reasonable detail the
action that such Master Servicer or such Special Servicer, as the case may be,
proposes to take. The Certificate Administrator, upon receipt of such notice,
shall forward it to the Certificateholders (other than such Master Servicer and
its Affiliates or such Special Servicer and its Affiliates, as appropriate),
together with a request for approval by the Certificateholders of each such
proposed action. If at any time Certificateholders holding greater than 50% of
the Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by such Master Servicer or its Affiliates or
such Special Servicer or its Affiliates, as the case may be) shall have
consented in writing (with a copy to each related Serviced Non-Pooled Mortgage
Loan Noteholder, if a Serviced Mortgage Loan Group is involved) to the proposal
described in the written notice, and if such Master Servicer or such Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be deemed to comply with the Servicing Standard. The Certificate
Administrator shall be entitled to reimbursement from the subject Master
Servicer or the subject Special Servicer, as applicable, for the reasonable
expenses of the Certificate Administrator incurred pursuant to this paragraph.
It is not the intent of the foregoing provision that any Master Servicer or
Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather in the case
of unusual circumstances.
SECTION 6.07. Indemnification of Non-Trust Master Servicers and
Non-Trust Special Servicers.
The related Non-Trust Master Servicer and the Non-Trust Special
Servicer under each Non-Trust Servicing Agreement, and any of their respective
directors, officers, employees or agents (collectively, the "Non-Serviced
Indemnified Parties"), shall be indemnified by the Trust and held harmless
against the Trust's pro rata share (subject to the related Mortgage Loan Group
Intercreditor Agreement) of any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action or claim that relates to its servicing of the related Mortgage Loan
Group under such Non-Trust Servicing Agreement (and is unrelated to the other
mortgage loans included in the trust fund created under such Non-Trust Servicing
Agreement) or this Agreement, reasonably requiring the use of counsel or the
incurring of expenses, other than any losses incurred by reason of any
Non-Serviced Indemnified Party's willful misfeasance, bad faith or negligence in
the performance of its duties or by reason of negligent disregard of its
obligations and duties under such Non-Trust Servicing Agreement or the related
Mortgage Loan Group Intercreditor Agreement. The indemnification provided in
this Section 6.07 shall survive the termination of this Agreement and the
termination or resignation of the applicable Master Servicer and/or the
applicable Special Servicer. The Non-Serviced Indemnified Parties are intended
third-party beneficiaries of the provisions set forth in this Section 6.07.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) with respect to a Master Servicer, any failure by such
Master Servicer to deposit into the Collection Account maintained by such
Master Servicer or (if it is the applicable Master Servicer for a Serviced
Mortgage Loan Group) a related Companion Note Custodial Account or related
Subordinate Note Custodial Account, any amount required to be so deposited
under this Agreement, which failure continues unremedied for one Business
Day following the date on which such deposit was first required to be
made; or
(ii) with respect to a Special Servicer, any failure by
such Special Servicer to deposit into the REO Account maintained by it or
to deposit, or remit to either Master Servicer for deposit, into a
Collection Account, Companion Note Custodial Account and/or Subordinate
Note Custodial Account, as applicable, any amount required to be so
deposited or remitted under this Agreement, which failure continues
unremedied for one Business Day following the date on which such deposit
or remittance, as the case may be, was first required to be made; or
(iii) any failure by a Master Servicer to remit to the
Certificate Administrator for deposit into the Distribution Account, on
any P&I Advance Date, the full amount of P&I Advances required to be made
by such Master Servicer on such date or, on any Master Servicer Remittance
Date, the full amount of the Master Servicer Remittance Amount and any
Compensating Interest Payment required to be remitted by such Master
Servicer on such date, which failure continues unremedied until 9:00 a.m.
(New York City time) on the related Distribution Date; provided, however,
that if a Master Servicer fails to make any deposit contemplated by this
Section 7.01(a)(iii), including any P&I Advance, which deposit is required
to be made by such Master Servicer on any P&I Advance Date or Master
Servicer Remittance Date (without regard to any grace period), then such
Master Servicer shall pay to the Certificate Administrator, for the
account of the Certificate Administrator, interest on such late remittance
at the Reimbursement Rate from and including such P&I Advance Date or such
Master Servicer Remittance Date to but excluding the related Distribution
Date; or
(iv) any failure by a Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of one Business Day following the date
on which notice shall have been given to such Master Servicer by the
Trustee as provided in Section 3.11(f); or
(v) any failure by a Special Servicer to timely make (or
request the applicable Master Servicer to make) any Servicing Advance
required to be made by it hereunder, which Servicing Advance remains
unmade for a period of one Business Day following the date on which notice
has been given to such Special Servicer by the Trustee as provided in
Section 3.11(f); or
(vi) any failure on the part of a Master Servicer or a
Special Servicer duly to observe or perform in any material respect any
other of the covenants or agreements on the part of such Master Servicer
or such Special Servicer, as the case may be, contained in this Agreement
(excluding Article XI, other than Section 11.11, Section 11.12 and/or
Section 11.13 (as modified by Section 11.13A) at any time after the Trust
is not required to report under the Exchange Act), which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to such Master Servicer or such Special Servicer, as the case may be, by
any other party hereto or to such Master Servicer
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or such Special Servicer, as the case may be, with a copy to each other
party hereto, or by the Holders of Certificates entitled to at least 25%
of the Voting Rights or, if affected by that failure, the applicable
Serviced Non-Pooled Noteholder; provided, however, that, with respect to
any such failure that is not curable within such 30-day period, such
Master Servicer or such Special Servicer, as the case may be, shall have
an additional cure period of 60 days to effect such cure so long as such
Master Servicer or the Special Servicer, as the case may be, has commenced
to cure such failure within the initial 30-day period and has provided the
Trustee with an Officer's Certificate certifying that it has diligently
pursued, and is continuing to pursue, a full cure; or
(vii) any breach on the part of a Master Servicer or a
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders or the applicable Non-Pooled Subordinate Noteholder
and which continues unremedied for a period of 30 days after the date on
which notice of such breach, requiring the same to be remedied, shall have
been given to such Master Servicer or such Special Servicer, as the case
may be, by any other party hereto or to such Master Servicer or such
Special Servicer, as the case may be, with a copy to each other party
hereto, or by the Holders of Certificates entitled to at least 25% of the
Voting Rights or, if affected by such breach, the applicable Serviced
Non-Pooled Mortgage Loan Noteholder; provided, however, that, with respect
to any such breach that is not curable within such 30-day period, such
Master Servicer or such Special Servicer, as the case may be, shall have
an additional cure period of 60 days to effect such cure so long as such
Master Servicer or such Special Servicer, as the case may be, has
commenced to cure such breach within the initial 30-day period and has
provided the Trustee with an Officer's Certificate certifying that it has
diligently pursued, and is continuing to pursue, a full cure; or
(viii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
a Master Servicer or a Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(ix) a Master Servicer or a Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to it or of or relating to all or substantially all of its
property; or
(x) a Master Servicer or a Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
association or company action in furtherance of the foregoing; or
(xi) a Master Servicer is removed from S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer or a Special
Servicer is removed from S&P's Select Servicer List as a U.S. Commercial
Mortgage Special Servicer, as the case may be, and, in either case, is not
reinstated within 60 days and the ratings then assigned by S&P to any
Classes of Rated Certificates are downgraded, qualified or withdrawn
(including, without limitation, being placed on a negative credit watch)
in connection with such removal; or
(xii) a Master Servicer ceases to have a master servicer
rating of at least "CMS3" from Fitch or a Special Servicer ceases to have
a special servicer rating of at least "CSS3" from Fitch and, in either
case, such rating is not reinstated within 60 days; or
(xiii) both (i) the Trustee receives written notice from
DBRS that the continuation of a Master Servicer or a Special Servicer in
its respective capacity would result in the downgrade or withdrawal of any
rating
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then assigned by DBRS to any Class of Rated Certificates and citing
servicing concerns with such Master Servicer or Special Servicer as the
sole or a material factor in such rating action and (ii) such notice is
not withdrawn, terminated or rescinded within 60 days following the
Trustee's receipt of such notice; or
(xiv) any failure by the applicable Master Servicer to
timely make any monthly remittance required to be made by it hereunder to
a Serviced Non-Pooled Mortgage Loan Noteholder related to a Mortgage Loan
Group for which such Master Servicer is the applicable Master Servicer; or
(xv) for so long as the Trust is subject to the reporting
requirements of the Exchange Act , 5 days after a failure by the
applicable Master Servicer to comply with any of its obligations under
Article XI of this Agreement and notice thereof to such Master Servicer
from the Trustee or the Depositor; provided, however, that if, following
the Master Servicer's failure to comply with any of such obligations under
Section 11.03, 11.04, 11.05, 11.07, 11.08, 11.09, 11.10, 11.11, 11.12 or
11.13 on or prior to the dates by which such obligations are to be
performed pursuant to, and as set forth in, such Sections, (a) such Master
Servicer subsequently complies with such obligations before the Trustee or
the Depositor gives written notice to it that it is terminated in
accordance with this subsection and (b) such Master Servicer's failure to
comply does not cause the Certificate Administrator to fail in its
obligations to timely file the related Form 8-K, Form 10-D or Form 10-K,
as the case may be, by the related Form 8-K Filing Deadline, Form 10-D
Filing Deadline or Form 10-K Filing Deadline, then such failure to comply
shall cease to be an Event of Default under this Section 7.01 on the date
on which such Form 8-K, Form 10-D or Form 10-K is so filed.
When a single entity acts as two or more of the capacities of the
Master Servicers and the Special Servicer, an Event of Default (other than an
event described in clauses (xi), (xii), (xiii), (xiv) and (xv) above) in one
capacity shall constitute an Event of Default in both or all such capacities.
(b) If any Event of Default with respect to any Master Servicer or
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Trustee may, and at the written direction of either the Holders of Certificates
entitled to not less than 25% of the Voting Rights or, alternatively, if an
Event of Default on the part of the General Special Servicer has occurred, the
Controlling Class Representative, the Trustee shall, terminate, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto), all of the rights and obligations (accruing from and after such notice)
of the Defaulting Party under this Agreement and in and to the Trust Fund (other
than as a Holder of any Certificate). From and after the receipt by the
Defaulting Party of such written notice, all of the responsibilities, duties,
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates, the Mortgage Loans or otherwise (other than as a
Holder of any Certificate or as a Non-Pooled Mortgage Loan Noteholder, if
applicable), shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise (provided, however, that each of the Master
Servicers and the Special Servicers shall, if terminated pursuant to this
Section 7.01(b), continue to be obligated to pay and entitled to receive all
amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, whether in respect of Advances or otherwise, and it
and its members, managers, directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination). Each of the Master Servicers and the Special Servicers agrees
that, if it is terminated pursuant to this Section 7.01(b), it shall promptly
(and in any event no later than 20 days subsequent to its receipt of the notice
of termination) provide the Trustee with all documents and records requested
thereby to enable the Trustee to assume the functions hereunder of such Master
Servicer or such Special Servicer, as the case may be, and shall otherwise
cooperate with the Trustee in effecting the termination of the rights and
responsibilities hereunder of such Master Servicer or such Special Servicer, as
the case may be, including the transfer within five (5) Business Days to the
Trustee for administration by it of all cash amounts that at the time are or
should have been credited by a Master Servicer
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to its Collection Account or any Companion Note Custodial Account (if such
Master Servicer is the applicable Master Servicer for the related Serviced
Mortgage Loan Group) or Subordinate Note Custodial Account (if such Master
Servicer is the applicable Master Servicer for the related Serviced Mortgage
Loan Group), the Distribution Account or any Servicing Account or Reserve
Account held by it (if it is the Defaulting Party) or by such Special Servicer
to its REO Account, a Collection Account, any Companion Note Custodial Account,
any Subordinate Note Custodial Account or any Servicing Account or Reserve
Account held by it (if it is the Defaulting Party) or that are thereafter
received by or on behalf of it with respect to any Mortgage Loan or REO Property
(provided, however, that if any Master Servicer or Special Servicer is
terminated pursuant to this Section 7.01(b), such Master Servicer or such
Special Servicer, as the case may be, shall continue to be obligated to pay and
entitled to receive all amounts accrued or owing by or to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it and its members, managers, directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination). Any costs or expenses (including
those of any other party hereto) incurred in connection with any actions to be
taken by a terminated Master Servicer or Special Servicer pursuant to this
paragraph shall be borne by such Master Servicer or such Special Servicer, as
the case may be (and, in the case of the Trustee's costs and expenses, if not
paid within a reasonable time, shall be borne by the Trust out of the Collection
Account).
Notwithstanding the foregoing, the applicable Master Servicer for
any Serviced Mortgage Loan Group shall not be terminated hereunder solely by
reason of an Event of Default under Section 7.01(a)(xiv) or by reason of any
other Event of Default that affects only a Serviced Non-Pooled Mortgage Loan
Noteholder. If an Event of Default under Section 7.01(a)(xiv) occurs on the part
of the applicable Master Servicer for any Serviced Mortgage Loan Group, or if
any other Event of Default occurs on the part of the applicable Master Servicer
for a Serviced Mortgage Loan Group and such Master Servicer is not terminated
pursuant to the provisions set forth above, any related Serviced Non-Pooled
Mortgage Loan Noteholder shall be entitled to require the applicable Master
Servicer to appoint, in accordance with Section 3.22, a Sub-Servicer, to be
selected by such Master Servicer, that will be responsible for primary servicing
such Serviced Mortgage Loan Group. In connection with the appointment of a
Sub-Servicer in accordance with this paragraph, if the applicable Serviced
Mortgage Loan Group includes one or more Serviced Non-Pooled Pari Passu
Companion Loans for which one or more classes of Non-Pooled Pari Passu Loan
Securities are outstanding that are then rated by S&P, either (A) such
Sub-Servicer shall be on S&P's Select Servicer List as a U.S. Commercial
Mortgage Master Servicer or (B) the applicable Master Servicer shall obtain, at
its own expense, a written confirmation from S&P to the effect that the
appointment of such Sub-Servicer will not result in an Adverse Rating Event with
respect to any class of such Non-Pooled Pari Passu Companion Loan Securities
rated by S&P. In no event shall any waiver of an Event of Default pursuant to
Section 7.04 affect the rights of the holder of any Serviced Non-Pooled Mortgage
Loan Noteholder under this paragraph.
(c) Notwithstanding Section 7.01(b) of this Agreement, if a
Master Servicer receives a notice of termination solely due to an Event of
Default under Section 7.01(a)(xi), (xii), (xiii) or (xv) and the terminated
Master Servicer provides the Trustee with the appropriate "request for proposal"
materials within the five (5) Business Days after such termination, then such
Master Servicer shall continue to serve as Master Servicer, if requested to do
so by the Trustee, and the Trustee shall promptly thereafter (using such
"request for proposal" materials provided by the terminated Master Servicer)
solicit good faith bids for the rights to master service the Mortgage Loans
under this Agreement for which the terminated Master Servicer is the applicable
Master Servicer from at least three (3) Persons qualified to act as successor
Master Servicer hereunder in accordance with Section 6.02 and Section 7.02 for
which the Trustee has received written confirmation from each Rating Agency for
the Rated Certificates that the appointment of such Person would not result in
an Adverse Rating Event with respect to any Class of Rated Certificates rated by
such Rating Agency and, if the terminated Master Servicer is the applicable
Master Servicer for any Serviced Mortgage Loan Group that includes one or more
Serviced Non-Pooled Pari Passu Companion Loans and such Serviced Mortgage Loan
Group is then serviced and administered under this Agreement, written
confirmation from each applicable Rating Agency for the related Non-Pooled Pari
Passu Companion Loan Securities that the appointment of such Person would not
result in an Adverse Rating Event with respect to any class of such Non-Pooled
Pari Passu Companion Loan Securities rated by such applicable Rating Agency (any
such Person so qualified, a "Qualified Bidder") or, if three (3) Qualified
Bidders cannot be located, then from as many Persons as the Trustee can
determine are Qualified Bidders; provided, however, that (i) at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such
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bids; (ii) prior to making such solicitation, the Trustee or, upon request of
the Trustee, the terminated Master Servicer, shall have consulted with (although
it shall not be required to have obtained the approval of) the Controlling Class
Representative with respect to the identity and quality of each of the Persons
from whom the Trustee is to solicit bids; and (iii) the Trustee shall not be
responsible if less than three (3) or no Qualified Bidders submit bids for the
right to master service the subject Mortgage Loans under this Agreement. The bid
proposal shall require any Successful Bidder (as defined below), as a condition
of such bid, to enter into this Agreement as successor Master Servicer with
respect to the applicable Mortgage Loans, and to agree to be bound by the terms
hereof, within forty-five (45) days after the receipt by the applicable Master
Servicer of a notice of termination. The Trustee shall solicit bids (i) on the
basis of such successor Master Servicer retaining all applicable Sub-Servicers
to continue the primary servicing of the applicable Serviced Mortgage Loans
pursuant to the terms of the respective Sub-Servicing Agreements and entering
into a Sub-Servicing Agreement with the terminated Master Servicer to service
each of the Serviced Mortgage Loans for which it was the applicable Master
Servicer and not subject to a Sub-Servicing Agreement at a sub-servicing fee
rate per annum equal to, for each Serviced Mortgage Loan serviced, the excess of
the related Master Servicing Fee Rate minus the sum of two basis points and the
related Excess Servicing Fee Rate (each, a "Servicing-Retained Bid") and (ii) on
the basis of terminating each applicable Sub-Servicing Agreement and each
applicable Sub-Servicer (other than a Designated Sub-Servicer and its
Sub-Servicing Agreement) that it is permitted to terminate in accordance with
Section 3.22 and having no obligation to enter into a Sub-Servicing Agreement
with the terminated Master Servicer (each, a "Servicing-Released Bid"). The
Trustee shall select the Qualified Bidder with the highest cash
Servicing-Retained Bid (or, if none, the highest cash Servicing Released Bid)
(the "Successful Bidder") to act as successor Master Servicer hereunder. The
Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof (and, if the successful
bid was a Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with
the terminated Master Servicer as contemplated above), no later than forty-five
(45) days after the termination of the terminated Master Servicer. In no event
shall the bid procedures under this subsection (c) purport to offer the
servicing right of any Primary Servicer or Designated Sub-Servicer that is not
then in default under its Primary Servicing Agreement or Designated Subservicing
Agreement.
(d) Upon the assignment and acceptance of the applicable master
servicing (including, in the case of an assignment of the rights of WFB or any
successor thereto as a Master Servicer, the servicer report administrative)
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted to the terminated Master Servicer the amount of such cash
bid received from the Successful Bidder (net of "out-of-pocket" expenses
incurred in connection with obtaining such bid and transferring servicing).
(e) If the Successful Bidder has not entered into this Agreement
as successor Master Servicer within forty-five (45) days after the related
Master Servicer received a notice of termination or no Successful Bidder was
identified within such forty-five (45) day period, the terminated Master
Servicer shall reimburse the Trustee for all reasonable "out-of-pocket" expenses
incurred by the Trustee in connection with such bid process and the Trustee
shall have no further obligations under this Section 7.01(c). The Trustee
thereafter may act or may select a successor to act as Master Servicer hereunder
in accordance with Section 7.02.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time any Master Servicer or Special Servicer
resigns pursuant to Section 6.04(a) or receives a notice of termination pursuant
to Section 7.01, the Trustee shall, subject to Section 3.25, be the successor in
all respects to such Master Servicer or such Special Servicer, as the case may
be, in its capacity as such under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto and arising thereafter placed on such Master
Servicer or such Special Servicer, as the case may be, by the terms and
provisions hereof, including, if a Master Servicer is the resigning or
terminated party, such Master Servicer's obligation to make Advances; provided,
however, that (i) any failure to perform such duties or responsibilities caused
by the failure of such Master Servicer or such Special Servicer, as the case may
be, to cooperate or to provide information or monies as required by Section 7.01
shall not be considered a default by the Trustee hereunder and (ii) in the case
of a terminated Master Servicer, the Trustee shall cease to act as successor
Master Servicer if an alternative successor is
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appointed pursuant to Section 7.01(c). Neither the Trustee nor any other
successor shall be liable for any of the representations and warranties of the
resigning or terminated party or for any losses incurred by the resigning or
terminated party pursuant to Section 3.06 hereunder nor shall the Trustee or any
other successor be required to purchase any Mortgage Loan hereunder. As
compensation therefor, the Trustee shall be entitled to all fees and other
compensation which the resigning or terminated party would have been entitled to
for future services rendered if the resigning or terminated party had continued
to act hereunder. Notwithstanding the above, if it is unwilling to so act, the
Trustee may (and, if it is unable to so act, or if the Trustee is not approved
as an acceptable master servicer or special servicer, as the case may be, by
each Rating Agency, or if the Holders of Certificates entitled to a majority of
all the Voting Rights (or, alternatively, if an Event of Default on the part of
the General Special Servicer has occurred, the Controlling Class Representative)
so requests in writing, the Trustee shall), promptly appoint, or petition a
court of competent jurisdiction to appoint, any established and qualified
institution as the successor to the resigning or terminated Master Servicer or
Special Servicer, as the case may be, hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of such Master Servicer or
such Special Servicer, as the case may be, hereunder; provided, however, that
(i) such appointment does not result in an Adverse Rating Event with respect to
any Class of Rated Certificates (as confirmed in writing to the Trustee by each
applicable Rating Agency for the Rated Certificates) and (if such Master
Servicer or Special Servicer is the applicable Master Servicer or the applicable
Special Servicer for a Serviced Mortgage Loan Group that is then serviced and
administered under this Agreement and includes one or more Serviced Non-Pooled
Pari Passu Companion Loans for which any Non-Pooled Pari Passu Companion Loan
Securities are then outstanding) also does not result in an Adverse Rating Event
with respect to any class of related Non-Pooled Pari Passu Companion Loan
Securities (as confirmed in writing to the Trustee by each applicable Rating
Agency for such Non-Pooled Pari Passu Companion Loan Securities), as applicable;
(ii) if such successor (in the case of a successor (other than if the other
Master Servicer is such successor) to a resigning or terminated Master Servicer)
does not have a master servicer rating from Fitch that is "CMS2" or above, such
successor is reasonably acceptable to the Controlling Class Representative and,
if such successor (other than if such successor is the other Master Servicer)
has a master servicer rating from Fitch that is "CMS2" or above, the Controlling
Class Representative shall have been consulted with respect to the identity of
(although it need not have approved) such successor and (iii) in the case of a
Loan Specific Special Servicer, such successor is acceptable to the related
Serviced Mortgage Loan Group Controlling Party in its sole discretion. No
appointment of a successor to any Master Servicer or Special Servicer hereunder
shall be effective until the assumption by such successor of all its
responsibilities, duties and liabilities hereunder, and pending such appointment
and assumption, the Trustee shall act in such capacity as hereinabove provided.
In connection with any such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on the
Mortgage Loans or otherwise as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. The Depositor, the Trustee, such
successor and each other party hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
If the Trustee or an Affiliate acts pursuant to this Section 7.02 as
successor to the resigning or terminated Master Servicer, it may reduce such
Master Servicer's Excess Servicing Fee Rate to the extent that its or such
Affiliate's compensation as successor Master Servicer would otherwise be below
the market rate servicing compensation. If the Trustee elects to appoint a
successor to the resigning or terminated Master Servicer other than itself or an
Affiliate pursuant to this Section 7.02, it may reduce such Master Servicer's
Excess Servicing Fee Rate to the extent reasonably necessary (in the sole
discretion of the Trustee) for the Trustee to appoint a qualified successor
Master Servicer that meets the requirements of this Section 7.02.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of a Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of a Master Servicer or
Special Servicer pursuant to Section 7.01, any appointment of a successor to a
Master Servicer or Special Servicer pursuant to Section 6.02, 6.04 or 7.02 or
the effectiveness of any designation of a new Special Servicer pursuant to
Section 3.25, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Serviced Non-Pooled Mortgage Loan Noteholder.
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(b) Not later than the later of (i) 60 days after the occurrence
of any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xi), clause (xii)
or clause (xiii) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes and in any event such Holders shall
not be entitled to waive any Event of Default under clause (xiv) of Section
7.01(a) (which may be waived only by the applicable Serviced Non-Pooled Mortgage
Loan Noteholder) or clause (xv) of Section 7.01(a) (which may be waived only by
the Depositor). Upon any such waiver of an Event of Default, and payment to the
Trustee and the Certificate Administrator of all reasonable costs and expenses
incurred by the Trustee and the Certificate Administrator in connection with
such default prior to its waiver (which costs shall be paid by the party
requesting such waiver), such Event of Default shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereon except to the extent expressly so waived. Notwithstanding any
other provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to the same Voting
Rights with respect to the matters described above as they would if registered
in the name of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right (exercisable subject to
Section 8.01(a)), in its own name and as trustee of an express trust and (in the
case of any matter affecting a Serviced Mortgage Loan Group) on behalf of the
related Serviced Non-Pooled Mortgage Loan Noteholder(s), to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders and such noteholder(s) (including the institution and
prosecution of all judicial, administrative and other proceedings and the
filings of proofs of claim and debt in connection therewith). Except as
otherwise expressly provided in this Agreement, no remedy provided for by this
Agreement shall be exclusive of any other remedy, and each and every remedy
shall be cumulative and in addition to any other remedy, and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Event of Default.
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ARTICLE VIII
THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE ADMINISTRATOR
AND THE TAX ADMINISTRATOR
SECTION 8.01. Duties of the Trustee, the Custodian, the Certificate
Administrator and the Tax Administrator.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Any permissive right of the Trustee contained in this
Agreement shall not be construed as a duty. The Trustee, the Custodian, the
Certificate Administrator and the Tax Administrator shall be liable in
accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Trustee, the Custodian, the
Certificate Administrator and the Tax Administrator.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee, the Custodian, the Certificate Administrator or the Tax Administrator,
as applicable, which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator, as
applicable, shall examine them to determine whether they conform to the
requirements of this Agreement. If any such instrument is found not to conform
to the requirements of this Agreement in a material manner, the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator, as
applicable, shall take such action as it deems appropriate to have the
instrument corrected. The Trustee, the Custodian, the Certificate Administrator
or the Tax Administrator, as applicable, shall not be responsible or liable for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, a Master
Servicer, a Special Servicer, any actual or prospective Certificateholder or
Certificate Owner or any Rating Agency, and accepted by the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve
the Trustee, the Tax Administrator or the Certificate Administrator from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and
after the curing or waiver of all Events of Default which may have
occurred, the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee.
(ii) In the absence of bad faith on the part of the
Trustee, the Certificate Administrator or the Tax Administrator, the
Trustee, the Certificate Administrator or the Tax Administrator, as
applicable, may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee, the Certificate Administrator or the
Tax Administrator, as applicable, and conforming to the requirements of
this Agreement.
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(iii) None of the Trustee, the Certificate Administrator or
the Tax Administrator shall be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of such entity
unless it shall be proved that such entity was negligent in ascertaining
the pertinent facts.
(iv) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by the Trustee, in good
faith in accordance with the terms of this Agreement and the direction of
Holders of Certificates entitled to at least 25% (or, as to any particular
matter, any higher percentage as may be specifically provided for
hereunder) of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement.
(v) Neither the Certificate Administrator nor the Trustee
shall be required to take action with respect to, or be deemed to have
notice or knowledge of, any default or Event of Default (other than an
Event of Default under Section 7.01(a)(xi), (xii) or (xiii)) or a Master
Servicer's failure to deliver any monies, including P&I Advances, or to
provide any report, certificate or statement, to the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, when
required pursuant to this Agreement) unless a Responsible Officer of the
Trustee or the Certificate Administrator shall have received written
notice or otherwise have actual knowledge thereof. Otherwise, the Trustee
and the Certificate Administrator may conclusively assume that there is no
such default or Event of Default.
(vi) Subject to the other provisions of this Agreement, and
without limiting the generality of this Section 8.01, none of the Trustee,
the Certificate Administrator or the Tax Administrator shall have any
duty, except, in the case of the Trustee, as expressly provided in Section
2.01(c) or Section 2.01(e) or in its capacity as successor to a Master
Servicer or a Special Servicer, (A) to cause any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security
interest, or to cause the maintenance of any such recording or filing or
depositing or to any re-recording, refiling or redepositing of any
thereof, (B) to cause the maintenance of any insurance, (C) to confirm or
verify the truth, accuracy or contents of any reports or certificates of
either Master Servicer, any Special Servicer, any actual or prospective or
any Certificateholder or Certificate Owner or any Rating Agency, delivered
to the Trustee, the Certificate Administrator or the Tax Administrator
pursuant to this Agreement reasonably believed by the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, to be
genuine and without error and to have been signed or presented by the
proper party or parties, (D) subject to Section 10.01(f), to see to the
payment or discharge of any tax levied against any part of the Trust Fund
other than from funds available in the Collection Accounts or the
Distribution Account, and (E) to see to the payment of any assessment or
other governmental charge or any lien or encumbrance of any kind owing
with respect to, assessed or levied against, any part of the Trust Fund
other than from funds available in a Collection Account or the
Distribution Account (provided that such assessment, charge, lien or
encumbrance did not arise out of the Trustee's, the Certificate
Administrator's or the Tax Administrator's, as applicable, willful
misfeasance, bad faith or negligence).
(vii) For as long as the Person that serves as the Trustee,
the Certificate Administrator or the Tax Administrator hereunder also
serves as Custodian and/or Certificate Registrar, the protections,
immunities and indemnities afforded to that Person in its capacity as
Trustee, Certificate Administrator or Tax Administrator, as applicable,
hereunder shall also be afforded to such Person in its capacity as
Custodian and/or Certificate Registrar, as the case may be.
(viii) If the same Person is acting in two or more of the
capacities of Trustee, Certificate Administrator, Tax Administrator,
Custodian or Certificate Registrar, then any notices required to be given
by such Person in one such capacity shall be deemed to have been timely
given to itself in any other such capacity.
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SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate
Administrator and the Tax Administrator.
Except as otherwise provided in Section 8.01:
(i) the Trustee, the Certificate Administrator and the Tax
Administrator, may each rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and without
error and to have been signed or presented by the proper party or parties;
(ii) the Trustee, the Certificate Administrator and the Tax
Administrator may each consult with counsel and any written advice or
opinion of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, unless such
Certificateholders shall have provided to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby satisfactory to the Trustee, in its reasonable
discretion; none of the Trustee, the Certificate Administrator or the Tax
Administrator shall be required to expend or risk its own funds (except to
pay expenses that could reasonably be expected to be incurred in
connection with the performance of its normal duties) or otherwise incur
any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
provided, however, that nothing contained herein shall relieve the Trustee
of the obligation, upon the occurrence of an Event of Default which has
not been waived or cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) none of the Trustee, the Certificate Administrator or
the Tax Administrator shall be personally liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of an Event of Default and
after the waiver or curing of all Events of Default which may have
occurred, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
Holders of Certificates entitled to at least 25% of the Voting Rights;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require an indemnity satisfactory
to the Trustee, in its reasonable discretion, against such expense or
liability as a condition to taking any such action;
(vi) except as contemplated by Section 8.06 and, with
respect to the Trustee alone, Section 8.14, none of the Trustee, the
Certificate Administrator or the Tax Administrator shall be required to
give any bond or surety in respect of the execution of the trusts created
hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers
vested in it by this Agreement, and the Certificate Administrator and the
Tax Administrator may each perform any of their respective duties
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hereunder, either directly or by or through the Custodian or other agents
or attorneys-in-fact, provided that the use of the Custodian or other
agents or attorneys-in-fact shall not be deemed to relieve the Trustee,
the Certificate Administrator or the Tax Administrator, as applicable, of
any of its duties and obligations hereunder (except as expressly set forth
herein);
(viii) none of the Trustee, the Certificate Administrator or
the Tax Administrator shall be responsible for any act or omission of a
Master Servicer or a Special Servicer (unless, in the case of the Trustee,
it is acting as a Master Servicer or a Special Servicer, as the case may
be) or of the Depositor; and
(ix) neither the Trustee nor the Certificate Registrar
shall have any obligation or duty to monitor, determine or inquire as to
compliance with any restriction on transfer imposed under Article V under
this Agreement or under applicable law with respect to any transfer of any
Certificate or any interest therein, other than to require delivery of the
certification(s) and/or Opinions of Counsel described in said Article
applicable with respect to changes in registration or record ownership of
Certificates in the Certificate Register and to examine the same to
determine substantial compliance with the express requirements of this
Agreement; and the Trustee and the Certificate Registrar shall have no
liability for transfers, including transfers made through the book-entry
facilities of the Depository or between or among Depository Participants
or beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in
connection with changes in registration or record ownership in the
Certificate Register.
SECTION 8.03. The Trustee, the Certificate Administrator and
the Tax Administrator not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than
the statements attributed to, and the representations and warranties of, the
Trustee, the Certificate Administrator and/or the Tax Administrator in Article
II, and the signature of the Certificate Registrar set forth on each outstanding
Certificate) shall not be taken as the statements of the Trustee, the
Certificate Administrator or the Tax Administrator, and none of the Trustee, the
Certificate Administrator or the Tax Administrator assumes any responsibility
for their correctness. None of the Trustee, the Certificate Administrator or the
Tax Administrator makes any representation as to the validity or sufficiency of
this Agreement (except as regards the enforceability of this Agreement against
it) or of any Certificate (other than as to the signature of the Trustee set
forth thereon) or of any Mortgage Loan or related document. None of the Trustee,
the Certificate Administrator or the Tax Administrator shall be accountable for
the use or application by the Depositor of any of the Certificates issued to it
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Pooled Mortgage
Loans to the Trust, or any funds (other than with respect to any funds held by
the Certificate Administrator) deposited in or withdrawn from the Collection
Account or any other account by or on behalf of the Depositor, a Master Servicer
or a Special Servicer (unless, in the case of the Trustee, it is acting in such
capacity). None of the Trustee, the Certificate Administrator or the Tax
Administrator shall be responsible for the legality or validity of this
Agreement (other than insofar as it relates to the obligations of the Trustee,
the Certificate Administrator or the Tax Administrator, as the case may be,
hereunder) or the validity, priority, perfection or sufficiency of any security,
lien or security interest granted to it hereunder or the filing of any financing
statements or continuation statements, except to the extent set forth in Section
2.01(c) and Section 2.01(e) or to the extent the Trustee is acting as a Master
Servicer or a Special Servicer and such Master Servicer or such Special
Servicer, as the case may be, would be so responsible hereunder. Except as
contemplated by Section 12.02(a), none of the Trustee, the Certificate
Administrator or the Tax Administrator shall be required to record this
Agreement.
SECTION 8.04. The Trustee, the Certificate Administrator and
the Tax Administrator May Own Certificates.
The Trustee (in its individual or any other capacity), the
Certificate Administrator or the Tax Administrator or any of their respective
Affiliates may become the owner or pledgee of Certificates with (except as
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otherwise provided in the definition of "Certificateholder") the same rights it
would have if it were not the Trustee, the Certificate Administrator or the Tax
Administrator or one of their Affiliates, as the case may be.
SECTION 8.05. Fees and Expenses of the Trustee, the
Certificate Administrator and the Tax
Administrator; Indemnification of and by the
Trustee, the Certificate Administrator and the
Tax Administrator.
(a) On each Distribution Date, the Certificate
Administrator shall withdraw from the Distribution Account, out of general
collections on the Pooled Mortgage Loans and REO Properties on deposit therein,
prior to any distributions to be made therefrom to Certificateholders on such
date, and pay to itself all Certificate Administrator Fees, to the Trustee all
Trustee Fees and to the Servicer Report Administrator all Servicer Report
Administrator Fees, in each case earned in respect of the Pooled Mortgage Loans
and any successor REO Pooled Mortgage Loans through the end of the then most
recently ended calendar month as compensation for all services rendered by the
Trustee and the Servicer Report Administrator, respectively, hereunder. As to
each Pooled Mortgage Loan and REO Pooled Mortgage Loan, the Trustee Fee, the
Certificate Administrator Fee and the Servicer Report Administrator Fee shall
accrue during each calendar month, commencing with December 2007, at the Trustee
Fee Rate, the Certificate Administrator Fee Rate and the Servicer Report
Administrator Fee Rate, respectively, on a principal amount equal to the Stated
Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may
be, immediately following the Distribution Date in such calendar month (or, in
the case of December 2007, on a principal amount equal to the Cut-off Date
Principal Balance of the particular Mortgage Loan). The Trustee Fee, the
Certificate Administrator Fee and the Servicer Report Administrator Fee accrued
during each calendar month shall be payable in the next succeeding calendar
month. With respect to each Pooled Mortgage Loan and REO Pooled Mortgage Loan,
the Trustee Fee, the Certificate Administrator Fee and the Servicer Report
Administrator Fee shall be calculated on the same Interest Accrual Basis as is
applicable to the accrual or deemed accrual of interest on such Mortgage Loan or
REO Mortgage Loan, as the case may be. The Trustee Fee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), the Certificate Administrator Fee and the Tax Administrator Fee
shall constitute the sole compensation of the Trustee, the Certificate
Administrator and the Tax Administrator, respectively, for such services to be
rendered by it. The Certificate Administrator shall be responsible for the
payment of the Tax Administrator Fee.
Notwithstanding the prior paragraph, if and to the extent that any
loss, liability, cost or expense that is, pursuant to the prior paragraph,
required to be borne by the Trust out of the Distribution Account or a
Collection Account, relates to any Mortgage Loan that is part of a Serviced
Mortgage Loan Group, (i) such loss, liability, cost or expense shall be payable
out of amounts on deposit in the relevant Collection Account, any related
Companion Note Custodial Account(s) and any related Subordinate Note Custodial
Account(s) collectively, prior to payment from funds in the Distribution Account
or a Collection Account that are unrelated to such Serviced Mortgage Loan Group;
(ii) if such Serviced Mortgage Loan Group includes one or more Serviced
Non-Pooled Subordinate Loans, such loss, liability, cost or expense shall be
payable out of amounts on deposit in the related Subordinate Note Custodial
Account and shall be payable out of the Distribution Account or a Collection
Account or Companion Note Custodial Account only to the extent that amounts
recoverable on the related Serviced Non-Pooled Subordinate Loan(s) are
insufficient to cover the portion of such loss, liability, cost or expense so
payable out of the related Subordinate Note Custodial Account; and (iii) if such
Serviced Mortgage Loan Group includes one or more Serviced Non-Pooled Pari Passu
Companion Loans, such loss, liability, cost or expense shall be payable out of
amounts on deposit in the relevant Collection Account and the related Companion
Note Custodial Account(s) (withdrawals from those accounts to be made in
accordance with the related Mortgage Loan Group Intercreditor Agreement and pro
rata according to the respective outstanding principal balances of the Pooled
Mortgage Loan and such Serviced Non-Pooled Pari Passu Companion Loans included
in such Serviced Mortgage Loan Group).
(b) The Trustee, the Certificate Administrator and the Tax
Administrator (each in its capacity as such or in its individual capacity) and
any of their respective directors, officers, employees, agents or affiliates are
entitled to be indemnified and held harmless out of the Collection Accounts
and/or the Distribution Account, as and to the extent provided in Section 3.05,
for and against any loss, liability, claim or expense (including costs and
expenses of litigation,
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and of investigation, reasonable counsel fees, damages, judgments and amounts
paid in settlement) arising out of, or incurred in connection with, this
Agreement, the Certificates, the Mortgage Loans (unless, in the case of the
Trustee, it incurs any such expense or liability in the capacity of successor to
a Master Servicer or a Special Servicer (as the case may be), in which case such
expense or liability will be reimbursable thereto in the same manner as it would
be for any other Master Servicer or Special Servicer, as the case may be) or any
act or omission of the Trustee, the Certificate Administrator or the Tax
Administrator relating to the exercise and performance of any of the rights and
duties of the Trustee, the Certificate Administrator or the Tax Administrator
hereunder; provided, however, that none of the Trustee, the Certificate
Administrator or the Tax Administrator shall be entitled to indemnification
pursuant to this Section 8.05(b) for (1) allocable overhead, such as costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses and similar internal costs and expenses, (2) any cost or
expense that does not constitute an "unanticipated expense" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii), (3) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or (4)
any loss, liability, claim or expense incurred by reason of any breach on the
part of the Trustee, the Certificate Administrator or the Tax Administrator of
any of their respective representations, warranties or covenants contained
herein or any willful misconduct, bad faith, fraud or negligence in the
performance of, or negligent disregard of, the Trustee's, the Certificate
Administrator's or the Tax Administrator's obligations and duties hereunder.
(c) The Master Servicers and the Special Servicers each shall
indemnify the Trustee, the Certificate Administrator and the Tax Administrator
(each in their respective capacity as such and in their individual capacity) for
and hold each of them harmless against any loss, liability, claim or expense
that is a result of such Master Servicer's or such Special Servicer's, as the
case may be, negligent acts or omissions in connection with this Agreement,
including the negligent use by such Master Servicer or such Special Servicer, as
the case may be, of any powers of attorney delivered to it by the Trustee
pursuant to the provisions hereof and the Mortgage Loans serviced by such Master
Servicer or such Special Servicer, as the case may be; provided, however, that,
if the Trustee, the Certificate Administrator or the Tax Administrator has been
reimbursed for such loss, liability, claim or expense pursuant to Section
8.05(b), then the indemnity in favor of such Person provided for in this Section
8.05(c) with respect to such loss, liability, claim or expense shall be for the
benefit of the Trust.
(d) Each of the Trustee, the Certificate Administrator and the
Tax Administrator shall indemnify each of the Master Servicers and each Special
Servicer (each in their respective capacity as such and in their individual
capacity) for and hold each of them harmless against any loss, liability, claim
or expense that is a result of the Trustee's, the Certificate Administrator's or
the Tax Administrator's, as the case may be, negligent acts or omissions in
connection with this Agreement; provided, however, that if a Master Servicer or
a Special Servicer has been reimbursed for such loss, liability, claim or
expense pursuant to Section 6.03, then the indemnity in favor of such Person
otherwise provided for in this Section 8.05(d) with respect to such loss,
liability, claim or expense shall be for the benefit of the Trust.
(e) This Section 8.05 shall survive the termination of this
Agreement or the resignation or removal of the Trustee, the Certificate
Administrator, the Tax Administrator, either Master Servicer or any Special
Servicer as regards rights and obligations prior to such termination,
resignation or removal.
SECTION 8.06. Eligibility Requirements for the Trustee, the
Certificate Administrator and the Tax Administrator.
The Trustee, the Certificate Administrator and the Tax Administrator
hereunder each shall at all times be a corporation, bank, trust company or
association that: (i) is organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia and,
in the case of the Trustee, authorized under such laws to exercise trust powers;
(ii) has a combined capital and surplus of at least $50,000,000; and (iii) is
subject to supervision or examination by federal or state authority. If such
corporation, bank, trust company or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation, bank, trust company or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so
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published. In addition: (i) the Trustee shall at all times meet the requirements
of Section 26(a)(1) of the Investment Company Act; and (ii) neither the
Certificate Administrator nor the Tax Administrator may have any affiliations or
act in any other capacity with respect to the transactions contemplated hereby
that would cause the Underwriter Exemption to be unavailable with respect to any
Class of Certificates as to which it would otherwise be available. Furthermore,
the Trustee, the Certificate Administrator and the Tax Administrator shall at
all times maintain a long-term unsecured debt rating of at least "A+" from S&P,
"A+" from Fitch and "AA (low)" from DBRS (or, if not rated by DBRS, an
equivalent rating (such as those listed above for S&P and Fitch) by at least two
nationally recognized statistical rating organizations) and a short-term
unsecured debt rating from each Rating Agency of at least "A-1" in the case of
S&P, "F-1" in the case of Fitch and "R-1" in the case of DBRS (or, if not rated
by DBRS, an equivalent rating (such as those listed above for S&P and Fitch) by
at least two nationally recognized statistical rating organizations) (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 Rated Certificates rated by such
Rating Agency and (if a Serviced Mortgage Loan Group is then serviced and
administered under this Agreement and includes one or more Serviced Non-Pooled
Pari Passu Companion Loans for which any Non-Pooled Pari Passu Companion Loan
Securities are then outstanding) also will not result in an Adverse Rating Event
with respect to any class of related Non-Pooled Pari Passu Companion Loan
Securities, in each case as confirmed in writing to the Trustee, the Certificate
Administrator, the Tax Administrator and the Depositor by each applicable Rating
Agency); provided that the Trustee shall not cease to be eligible to serve as
such based on a failure to satisfy such rating requirements so long as either:
(i) the Trustee maintains a long-term unsecured debt rating of no less than
"BBB" from S&P, "BBB" from Fitch and "BBB" from DBRS (or, if not rated by DBRS,
an equivalent rating (such as those listed above for S&P and Fitch) by at least
two nationally recognized statistical rating organizations) (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 Rated Certificates rated by such Rating
Agency and (if a Serviced Mortgage Loan Group is then serviced and administered
under this Agreement and includes one or more Serviced Non-Pooled Pari Passu
Companion Loans for which any Non-Pooled Pari Passu Companion Loan Securities
are then outstanding) also will not result in an Adverse Rating Event with
respect to any class of related Non-Pooled Pari Passu Companion Loan Securities,
in each case as confirmed in writing to the Trustee, the Certificate
Administrator, the Tax Administrator and the Depositor by each applicable Rating
Agency), and a Fiscal Agent meeting the requirements of Section 8.13 has been
appointed by the Trustee and is then currently serving in such capacity; or (ii)
the Trustee maintains a long-term unsecured debt rating of no less than "A" from
S&P, "A" from Fitch and "A" from DBRS (or, if not rated by DBRS, an equivalent
rating (such as those listed above for S&P and Fitch) by at least two nationally
recognized statistical rating organizations) (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 Rated Certificates rated by such Rating Agency and (if a
Serviced Mortgage Loan Group is then serviced and administered under this
Agreement and includes one or more Serviced Non-Pooled Pari Passu Companion
Loans for which any Non-Pooled Pari Passu Companion Loan Securities are then
outstanding) also will not result in an Adverse Rating Event with respect to any
class of related Non-Pooled Pari Passu Companion Loan Securities, in each case
as confirmed in writing to the Trustee, the Certificate Administrator, the Tax
Administrator and the Depositor by each applicable Rating Agency) and an Advance
Security Arrangement meeting the requirements of Section 8.15 has been
established by the Trustee and is then currently being maintained. In case at
any time the Trustee, the Certificate Administrator or the Tax Administrator
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee, the Certificate Administrator or the Tax Administrator, as
applicable, shall resign immediately in the manner and with the effect specified
in Section 8.07. The corporation, bank, trust company or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Pooled Mortgage Loan Sellers, the Master Servicers, the Special Servicers and
their respective Affiliates; provided, however, that none of (i) the Depositor,
(ii) any Person involved in the organization or operation of the Depositor or
the Trust, (iii) a Master Servicer or Special Servicer (except during any period
when the Trustee has assumed the duties of such Master Servicer or Special
Servicer (as the case may be) pursuant to Section 7.02, (iv) any Pooled Mortgage
Loan Seller or (v) any Affiliate of any of them, may be the Trustee hereunder.
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SECTION 8.07. Resignation and Removal of the Trustee, the
Certificate Administrator and the Tax Administrator.
(a) The Trustee, the Certificate Administrator and the Tax
Administrator each may at any time resign and be discharged from their
respective obligations created hereunder by giving written notice thereof to the
other such parties, the Depositor, the Master Servicers, the Special Servicers,
the Rating Agencies and all the Certificateholders. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor trustee,
certificate administrator or tax administrator, as the case may be, meeting the
eligibility requirements of Section 8.06 by written instrument, in duplicate,
which instrument shall be delivered to the resigning Trustee, Certificate
Administrator or Tax Administrator, as the case may be, and to the successor
trustee, certificate administrator or tax administrator, as the case may be. A
copy of such instrument shall be delivered to other parties hereto and to the
Certificateholders by the Depositor. If no successor trustee, certificate
administrator or tax administrator, as the case may be, shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee, Certificate Administrator or Tax
Administrator, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor trustee, certificate
administrator or tax administrator, as the case may be.
(b) If at any time the Trustee, the Certificate Administrator or
the Tax Administrator shall cease to be eligible in accordance with the
provisions of Section 8.06 and shall fail to resign after written request
therefor by the Depositor or a Master Servicer, or if at any time the Trustee,
the Certificate Administrator or the Tax Administrator shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee, the Certificate Administrator or the Tax Administrator or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee, the Certificate Administrator or the Tax Administrator or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's, Certificate Administrator's or Tax
Administrator's continuing to act in such capacity would result in an Adverse
Rating Event with respect to any Class of Rated Certificates rated by a Rating
Agency for the Rated Certificates, as confirmed in writing to the Depositor by
each applicable Rating Agency, then the Depositor may (and, if it fails to do so
within 10 Business Days, PAR or any successor thereto as Master Servicer shall
as soon as practicable) remove the Trustee, the Certificate Administrator or the
Tax Administrator, as the case may be, and appoint a successor trustee,
certificate administrator or tax administrator, as the case may be, by written
instrument, in duplicate, which instrument shall be delivered to the Trustee,
the Certificate Administrator or the Tax Administrator, as the case may be, so
removed and to the successor trustee, certificate administrator or tax
administrator, as the case may be. A copy of such instrument shall be delivered
to the other parties hereto and to the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to more than 50% of the
Voting Rights may at any time remove the Trustee, Certificate Administrator or
Tax Administrator and appoint a successor trustee, certificate administrator or
tax administrator, as the case may be, by written instrument or instruments
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Depositor, one complete set
to the Trustee, Certificate Administrator or Tax Administrator, as the case may
be, so removed, and one complete set to the successor so appointed. All expenses
incurred by the Trustee in connection with its transfer of the Mortgages Files
to a successor trustee following the removal of the Trustee without cause
pursuant to this Section 8.07(c), shall be reimbursed to the removed Trustee
within 30 days of demand therefor, such reimbursement to be made by the
Certificateholders that terminated the Trustee. A copy of such instrument shall
be delivered to the other parties hereto and to the remaining Certificateholders
by the successor so appointed.
(d) Any resignation or removal of the Trustee, the Certificate
Administrator or the Tax Administrator and appointment of a successor trustee,
certificate administrator or tax administrator, as the case may be, pursuant to
any of the provisions of this Section 8.07 shall not become effective until (i)
acceptance of appointment by the successor trustee, certificate administrator or
tax administrator, as the case may be, as provided in Section 8.08 and (ii) if
the successor trustee, certificate administrator or tax administrator, as the
case may be, does not have a long-term unsecured debt rating of at least and
"A+" from S&P, "AA-" from Fitch and "AA (low)" from DBRS (or, if not rated by
DBRS, an equivalent rating (such as those listed above for S&P and Fitch) by at
least two nationally recognized statistical rating
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organizations) and a short-term unsecured debt rating from each Rating Agency of
at least and "A-1" in the case of S&P, "F-1" in the case of Fitch and "R-1" in
the case of DBRS (or, if not rated by DBRS, an equivalent rating (such as those
listed above for S&P and Fitch) by at least two nationally recognized
statistical rating organizations), the Trustee and the Depositor have received
written confirmation from each Rating Agency for the Rated Certificates that has
not so assigned such a rating, to the effect that the appointment of such
successor trustee, certificate administrator or tax administrator, as the case
may be, shall not result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency and (if a Serviced Mortgage Loan
Group is then serviced and administered under this Agreement and includes one or
more Serviced Non-Pooled Pari Passu Companion Loans for which any Non-Pooled
Pari Passu Companion Loan Securities are then outstanding) also will not result
in an Adverse Rating Event with respect to any class of related Non-Pooled Pari
Passu Companion Loan Securities.
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax
Administrator.
(a) Any successor trustee, certificate administrator or tax
administrator appointed as provided in Section 8.07 shall execute, acknowledge
and deliver to the Depositor, each Master Servicer, each Special Servicer and
its predecessor trustee, certificate administrator or tax administrator, as the
case may be, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee, certificate administrator
or tax administrator, as the case may be, shall become effective and such
successor trustee, certificate administrator or tax administrator, as the case
may be, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee, certificate
administrator or tax administrator herein. If the Trustee is being replaced, the
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, each Master
Servicer, each Special Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor trustee all such
rights, powers, duties and obligations, and to enable the successor trustee to
perform its obligations hereunder.
(b) No successor trustee, certificate administrator or tax
administrator shall accept appointment as provided in this Section 8.08 unless
at the time of such acceptance such successor trustee, certificate administrator
or tax administrator, as the case may be, shall be eligible under the provisions
of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee,
certificate administrator or tax administrator as provided in this Section 8.08,
such successor trustee, certificate administrator or tax administrator, as the
case may be, shall mail notice of the succession of such trustee, certificate
administrator or tax administrator hereunder to the Depositor, the
Certificateholders and the other parties hereto.
SECTION 8.09. Merger or Consolidation of the Trustee, the
Certificate Administrator or the Tax Administrator.
Any entity into which the Trustee, Certificate Administrator or Tax
Administrator may be merged or converted or with which it may be consolidated or
any entity resulting from any merger, conversion or consolidation to which the
Trustee, Certificate Administrator or Tax Administrator shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, Certificate
Administrator or Tax Administrator, shall be the successor of the Trustee,
Certificate Administrator or Tax Administrator, as the case may be, hereunder,
provided such entity shall be eligible under the provisions of Section 8.06,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
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SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the applicable Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity, such
title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the applicable Master Servicer and the Trustee may consider necessary
or desirable. If the applicable Master Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request to do so, or in
case an Event of Default in respect of the applicable Master Servicer shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06, and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or when acting as a Master Servicer, Special Servicer, Certificate
Administrator or Tax Administrator hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, at its own expense, appoint any Person with
appropriate experience as a document custodian to act as Custodian hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Custodian, the Trustee agrees to act in such capacity in
accordance with the terms hereof. The appointment of a Custodian shall not
relieve the Trustee from such entity's obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of the Custodian. The
Custodian shall be subject to the same standards of care, limitations on
liability and rights to indemnity as the Trustee, and the provisions of Sections
8.01, 8.02, 8.03, 8.04, 8.05(b), 8.05(c), 8.05(d) and 8.05(e) shall apply to the
Custodian to the same extent that they apply to the Trustee. Any Custodian
appointed in accordance with this Section 8.11 may at any time resign by giving
at least 30 days' advance
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written notice of resignation to the Certificate Administrator, the Trustee,
each Master Servicer, each Special Servicer and the Depositor. The Trustee may
at any time terminate the agency of any Custodian appointed in accordance with
this Section 8.11 by giving written notice of termination to such Custodian,
with a copy to the Certificate Administrator, each Master Servicer, each Special
Servicer and the Depositor. Each Custodian shall comply with the requirements
for Trustees set forth in Section 8.06, shall not be the Depositor, any Pooled
Mortgage Loan Seller or any Affiliate of the Depositor or any Pooled Mortgage
Loan Seller, and shall have in place a fidelity bond and errors and omissions
policy, each in such form and amount as is customarily required of custodians
acting on behalf of Xxxxxxx Mac or Xxxxxx Mae.
SECTION 8.12. Access to Certain Information.
(a) The Trustee and the Custodian shall each afford to the
Depositor, the Underwriters, each Master Servicer, each Primary Servicer, each
Special Servicer, the Controlling Class Representative and each Rating Agency
and to the OTS, the FDIC and any other banking or insurance regulatory authority
that may exercise authority over any Certificateholder or Certificate Owner,
access to any documentation regarding the Pooled Mortgage Loans or the other
assets of the Trust Fund that are in its possession or within its control. Such
access shall be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the Trustee or the
Custodian, as the case may be, designated by it.
(b) The Trustee (or, in the case of the items referenced in
clause (ix) below, the Custodian, or in the case of the items referenced in
clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the
case of the items referenced in clause (xii), both the Certificate Administrator
and the Trustee) shall maintain at its offices or the offices of a Custodian
and, upon reasonable prior written request and during normal business hours,
shall make available, or cause to be made available, for review by the
Depositor, the Rating Agencies, the Certificate Administrator, the Custodian,
the Controlling Class Representative and, subject to the succeeding paragraph,
any Certificateholder, Certificate Owner or Person identified to the Trustee
(or, in the case of the items referenced in clause (ix) below, the Custodian, or
in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the
Certificate Administrator, or in the case of the items referenced in clause
(xi), both the Certificate Administrator and the Trustee) as a prospective
Transferee of a Certificate or an interest therein, originals and/or copies of
the following items (to the extent such items were prepared by or delivered to
the Trustee (or, in the case of the items referenced in clause (ix) below, the
Custodian, or in the case of the items referenced in clauses (i), (ii), (iii)
and (viii), the Certificate Administrator, or in the case of the items
referenced in clause (xi), both the Certificate Administrator and the Trustee):
(i) the Prospectus, the Private Placement Memorandum and any other disclosure
document relating to the Certificates, in the form most recently provided to the
Certificate Administrator by the Depositor or by any Person designated by the
Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the
Certificate Administrator since the Closing Date, each Mortgage Loan Purchase
Agreement, each Non-Trust Servicing Agreement and any amendments and exhibits
hereto or thereto; (iii) all Certificate Administrator Reports and any files and
reports comprising the CMSA Investor Reporting Package actually delivered or
otherwise made available to Certificateholders pursuant to Section 4.02(a) since
the Closing Date; (iv) all Annual Performance Certifications delivered by the
Master Servicers and/or the Special Servicers to the Certificate Administrator
and the Trustee since the Closing Date and all comparable certifications
delivered to the Trustee with respect to comparable servicing parties under the
Non-Trust Servicing Agreements since the Closing Date; (v) all Annual
Accountants' Reports caused to be delivered by the Master Servicers and/or the
Special Servicers, respectively, to the Certificate Administrator and the
Trustee since the Closing Date and all comparable accountant's reports delivered
to the Trustee with respect to comparable servicing parties under the Non-Trust
Servicing Agreements since the Closing Date; (vi) the most recent inspection
report prepared by a Master Servicer or a Special Servicer and delivered to the
Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a) (or,
in the case of the Mortgaged Property securing a Non-Trust-Serviced Pooled
Mortgage Loan, prepared by the comparable servicing party under the related
Non-Trust Servicing Agreement and delivered to the Trustee since the Closing
Date); (vii) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property as to which the environmental testing
contemplated by Section 3.09(c) revealed that neither of the conditions set
forth in clauses (i) and (ii) of the first sentence thereof was satisfied;
(viii) all files and reports comprising the CMSA Investor Reporting Package
delivered to the Certificate Administrator since the Closing Date pursuant to
Section 4.02(b); (ix) each of the Mortgage Files, including any and all
modifications, waivers and
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amendments of the terms of a Mortgage Loan entered into or consented to by a
Master Servicer or Special Servicer and delivered to the Trustee or any
Custodian pursuant to Section 3.20; (x) any and all Officer's Certificates and
other evidence delivered to or by the Trustee to support its, a Master
Servicer's or a Special Servicer's, as the case may be, determination that any
Advance was (or, if made, would be) a Nonrecoverable Advance; (xi) to the extent
not otherwise described in any of the foregoing clauses (i) through (x), any and
all reports, statements and other written or electronic information relating to
a Non-Trust-Serviced Pooled Mortgage Loan, the related Mortgaged Property and/or
the related Borrower, to the extent such items were received by the applicable
Master Servicer under this Agreement or by any party to the related Non-Trust
Servicing Agreement and (in either case) delivered to the Trustee since the
Closing Date; and (xii) any other information that may be necessary to satisfy
the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act.
The Certificate Administrator, the Trustee or the Custodian, as applicable,
shall provide, or cause to be provided, copies of any and all of the foregoing
items upon request of any of the parties set forth in the previous sentence;
however, except in the case of the Rating Agencies and the Controlling Class
Representative, the Certificate Administrator or the Custodian shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies.
In connection with providing, or causing to be provided, access to
or copies of the items described in the preceding paragraph pursuant to this
Section 8.12(b), the Certificate Administrator, the Trustee or the Custodian, as
the case may be, shall require: (a) in the case of Certificateholders and
Certificate Owners, a written confirmation executed by the requesting Person
substantially in the form of Exhibit K-1 hereto (or such other form as may be
reasonably acceptable to the Certificate Administrator, the Trustee or the
Custodian, as the case may be) generally to the effect that such Person is a
Holder or Certificate Owner of Certificates and, subject to the last sentence of
this paragraph, will keep such information confidential (except that such
Certificateholder or Certificate Owner may provide such information to its
auditors, legal counsel and regulators and to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein (provided that
such other Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential)); and (b)
in the case of a prospective purchaser of a Certificate or an interest therein,
confirmation executed by the requesting Person substantially in the form of
Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the
Certificate Administrator, the Trustee or the Custodian, as the case may be)
generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein, is requesting the information for use in
evaluating a possible investment in Certificates and, subject to the last
sentence of this paragraph, will otherwise keep such information confidential.
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner need keep confidential any
information received from the Certificate Administrator, the Trustee or the
Custodian, as the case may be, pursuant to this Section 8.12(b) that has
previously been filed with the Commission, and the Certificate Administrator,
the Trustee or the Custodian, as the case may be, shall not require either of
the certifications contemplated by the preceding sentence in connection with
providing any information pursuant to this Section 8.12(b) that has previously
been filed with the Commission.
(c) None of the Trustee, the Custodian or the Certificate
Administrator shall be liable for providing or disseminating information in
accordance with the terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) In order to satisfy the eligibility requirements of
Section 8.06 (insofar as such requirements relate to ratings), the Trustee may
appoint a Fiscal Agent. Any Fiscal Agent shall at all times maintain a long-term
unsecured debt rating of no less than "AA-" from S&P (or "A+" from S&P, if such
Fiscal Agent's short-term unsecured debt rating is at least "A-1" by S&P), "AA-"
from Fitch and "AA (low)" from DBRS (or, if not rated by DBRS, an equivalent
rating (such as those listed above for S&P and Fitch) by at least two nationally
recognized statistical rating organizations) (or, in the case of any Rating
Agency, such other rating as shall not result in an Adverse Rating Event with
respect to any Class of Certificates rated by such Rating Agency, as confirmed
in writing by such Rating Agency).
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(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, any Fiscal Agent appointed by the Trustee shall make such Advance as and
when required by the terms of this Agreement on behalf the Trustee as if such
Fiscal Agent were the Trustee hereunder. To the extent that a Fiscal Agent makes
an Advance pursuant to this Section 8.13(b) or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities that the Trustee is entitled to
hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any interest owed to such Fiscal Agent in respect of
unreimbursed Advances) incurred by such Fiscal Agent in connection with the
transactions contemplated by this Agreement shall be borne by the Trustee, and
neither the Trustee nor such Fiscal Agent shall be entitled to reimbursement
therefor from any of the Trust Fund, the Depositor, either Master Servicer or
any Special Servicer.
(d) The obligations of a Fiscal Agent set forth in this
Section 8.13 or otherwise pursuant to this Agreement shall exist only for so
long as the Trustee that appointed it shall act as Trustee hereunder. A Fiscal
Agent may resign or be removed by the Trustee only if and when the existence of
such Fiscal Agent is no longer necessary for such Trustee to satisfy the
eligibility requirements of Section 8.06; provided that a Fiscal Agent shall be
deemed to have resigned at such time as the Trustee that appointed it resigns or
is removed as Trustee hereunder (in which case the responsibility for appointing
a successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 8.06). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of a Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
8.13(a) or (ii) the Trustee shall have received written confirmation from each
Rating Agency that the succession of such proposed successor fiscal agent would
not, in and of itself, result in an Adverse Rating Event with respect to any
Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto,
the Certificateholders and the Serviced Non-Pooled Mortgage Loan Noteholders in
writing of the appointment, resignation or removal of any Fiscal Agent.
SECTION 8.14. Representations and Warranties of any Fiscal Agent.
(a) Any Fiscal Agent shall hereby represent and warrant to each of
the other parties hereto and for the benefit of the Certificateholders and the
Serviced Non-Pooled Mortgage Loan Noteholders, as of the date of its
appointment, that:
(i) Such Fiscal Agent is a legal entity duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its organization.
(ii) The execution and delivery of this Agreement by such
Fiscal Agent, and the performance and compliance with the terms of this
Agreement by such Fiscal Agent, will not violate such Fiscal Agent's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default,
in such Fiscal Agent's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of such Fiscal Agent to
perform its obligations under this Agreement.
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(iii) Such Fiscal Agent has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of such Fiscal Agent, enforceable against
such Fiscal Agent in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) Such Fiscal Agent is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in such Fiscal Agent's good faith
and reasonable judgment, is likely to affect materially and adversely the
ability of such Fiscal Agent to perform its obligations under this
Agreement.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by such Fiscal Agent of the transactions contemplated herein,
except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of such
Fiscal Agent's knowledge, threatened against such Fiscal Agent that, if
determined adversely to such Fiscal Agent, would prohibit such Fiscal
Agent from entering into this Agreement or that, in such Fiscal Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect the ability of such Fiscal Agent to perform its obligations under
this Agreement.
(b) The representations and warranties of any Fiscal Agent set forth
in Section 8.14(a) shall survive the execution and delivery of this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust remains in existence. Upon discovery by any party
hereto of any breach of any of such representations and warranties, which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall given prompt written
notice to the other parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 8.14(a).
SECTION 8.15. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
bond or other comparable instrument or for any other security or financial
arrangement not contemplated by Section 8.13 (any or all of the foregoing,
individually and collectively, an "Advance Security Arrangement") for purposes
of supporting its back-up advancing obligations hereunder; provided that any
Advance Security Arrangement shall be in such form and amount, and shall be
maintained in such manner, as (i) would permit the Trustee to act in such
capacity without an Adverse Rating Event in respect of any Class of Rated
Certificates and (if a Serviced Mortgage Loan Group is then serviced and
administered under this Agreement and includes one or more Serviced Non-Pooled
Pari Passu Companion Loans for which any Non-Pooled Pari Passu Companion Loan
Securities are then outstanding) also without an Adverse Rating Event with
respect to any class of related Non-Pooled Pari Passu Companion Loan Securities,
in each case as confirmed in writing to the Trustee and the Depositor by each
applicable Rating Agency, and (ii) would not result in an Adverse REMIC Event or
an Adverse Grantor Trust Event (as evidenced by an Opinion of Counsel addressed
and delivered to the Trustee, the Depositor and the Tax Administrator).
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The Trustee may terminate any Advance Security Arrangement established by it
only if and when (i) the existence of such Advance Security Arrangement is no
longer necessary for the Trustee to satisfy the eligibility requirements of
Section 8.06 or (ii) when such Trustee resigns or is removed as Trustee
hereunder.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Pooled Mortgage Loans.
(a) Subject to Section 9.02 and the respective purchase rights (if
any) of the GGP Portfolio Non-Pooled Subordinate Noteholder, the Aviata
Apartments Non-Pooled Subordinate Noteholder, the HRC Portfolio 3 Non-Pooled
Subordinate Noteholder, the HRC Portfolio 1 Non-Pooled Subordinate Noteholder,
the HRC Portfolio 2 Non-Pooled Subordinate Noteholder and the Circuit City San
Xxxxxx Non-Pooled Subordinate Noteholder contained in the related Mortgage Loan
Group Intercreditor Agreement with respect to the related Pooled Mortgage Loan,
the Trust and the respective obligations and responsibilities under this
Agreement of the parties hereto (other than the obligations of the Certificate
Administrator to provide for and make payments to Certificateholders as
hereafter set forth) shall terminate upon payment (or provision for payment) to
the Certificateholders of all amounts held by the Certificate Administrator on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of: (i) the purchase by any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders, one or both of the Master Servicers or the General Special
Servicer (whose respective rights to effect such a purchase shall be subject to
the priorities and conditions set forth in subsection (b)) of all Pooled
Mortgage Loans and each REO Property (or, in the case of any REO Property
related to any Mortgage Loan Group, the beneficial interest of the Trust Fund in
such REO Property) remaining in the Trust Fund at a price (the "Termination
Price") equal to (A) the aggregate Purchase Price of all the Pooled Mortgage
Loans remaining in the Trust Fund (exclusive of any REO Pooled Mortgage
Loan(s)), plus (B) the appraised value of each REO Property (or, in the case of
any REO Property related to any Mortgage Loan Group, the beneficial interest of
the Trust Fund in such REO Property), if any, included in the Trust Fund, such
appraisal for such REO Property to be conducted by a Qualified Appraiser
selected by the General Special Servicer and approved by the Certificate
Administrator and the applicable Master Servicer, minus (C) if the purchaser is
a Master Servicer or the General Special Servicer, the aggregate amount of
unreimbursed Advances made by such Person, together with any unpaid Advance
Interest in respect of such unreimbursed Advances and any unpaid servicing
compensation payable to such Person (which items shall be deemed to have been
paid or reimbursed to such Master Servicer or the General Special Servicer, as
the case may be, in connection with such purchase); (ii) the exchange by the
Sole Certificateholder(s) of all the Certificates for all Pooled Mortgage Loans
and each REO Property (or, in the case of any REO Property related to any
Mortgage Loan Group, the beneficial interest of the Trust Fund in such REO
Property) remaining in the Trust Fund; and (iii) the final payment or other
liquidation (or any advance with respect thereto) of the last Pooled Mortgage
Loan or REO Property remaining in the Trust Fund; provided, however, that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. James's, living on the date
hereof.
(b) Any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders, PAR (or its successor) as a Master
Servicer, WFB (or its successor) as a Master Servicer or the General Special
Servicer, in that order of preference, may at its option elect to purchase all
the Pooled Mortgage Loans and each REO Property (or, in the case of any REO
Property related to any Mortgage Loan Group, the beneficial interest of the
Trust Fund in such REO Property) remaining in the Trust Fund as contemplated by
clause (i) of Section 9.01(a) by giving written notice to the other parties
hereto (and, in the case of an election by a Master Servicer or the General
Special Servicer, to the Holders of the Controlling Class) no later than 60 days
prior to the anticipated date of purchase; provided, however, that:
(A) the aggregate Stated Principal Balance of the Mortgage Pool at
the time of such election is 1.0% or less of the Initial Pool
Balance;
(B) within 30 days after written notice of such election is so
given, no Person with a higher right of priority to make such
an election does so;
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(C) if more than one Controlling Class Certificateholder or group
of Controlling Class Certificateholders desire to purchase all
of the Pooled Mortgage Loans and any REO Properties remaining
in the Trust Fund, preference shall be given to the
Controlling Class Certificateholder or group of Controlling
Class Certificateholders with the largest Percentage Interest
in the Controlling Class; and
(D) if a Master Servicer makes such an election, then the other
Master Servicer will have the option, by giving written notice
to the other parties hereto and to the Holders of the
Controlling Class no later than 30 days prior to the
anticipated date of purchase, to purchase all of the Pooled
Mortgage Loans and related REO Properties (or, in the case of
any REO Property related to any Mortgage Loan Group, the
beneficial interest of the Trust Fund in such REO Property)
remaining in the Trust Fund for which it is the applicable
Master Servicer.
If the Trust is to be terminated in connection with the purchase of
all the Pooled Mortgage Loans and each REO Property (or, in the case of any REO
Property related to any Mortgage Loan Group, the beneficial interest of the
Trust Fund in such REO Property) remaining in the Trust Fund by any Controlling
Class Certificateholder(s), one or both of the Master Servicers or the General
Special Servicer, such Person(s) shall: (i) deposit, or deliver to the Master
Servicers for deposit, in the respective Collection Accounts (after the
Determination Date, and prior to the Master Servicer Remittance Date, relating
to the anticipated Final Distribution Date) an amount in immediately available
funds equal to the Termination Price (the portion thereof allocable to all such
Pooled Mortgage Loans and related REO Properties, other than those for which a
Master Servicer exercises its option under clause (D) above, to be deposited in
the other Master Servicer's Collection Account and the portion thereof allocable
to those for which a Master Servicer exercises its option under clause (D) above
to be deposited in the such Master Servicer's Collection Account); and (ii)
shall reimburse all of the parties hereto (other than itself, if applicable) for
all reasonable out-of-pocket costs and expenses incurred by such parties in
connection with such purchase. On the Master Servicer Remittance Date for the
Final Distribution Date, each Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred by it to such account on such
Master Servicer Remittance Date from such Master Servicer's Collection Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in such Collection Account that would otherwise be held for
future distribution. Upon confirmation that such deposits and reimbursements
have been made, the Trustee shall release or cause to be released to the
purchasing party (or its designee) the Mortgage Files for the remaining Pooled
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the purchasing party as shall be necessary to
effectuate transfer of the remaining Pooled Mortgage Loans and REO Properties to
the purchasing party (or its designee).
Following the date on which the aggregate Certificate Principal
Balance of the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class
A-1A, Class A-M, Class AM-A, Class A-J, Class AJ-A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates is reduced
to zero, the Sole Certificateholder(s) shall have the right to exchange all of
the Certificates for all of the Pooled Mortgage Loans and each REO Property (or,
in the case of any REO Property related to any Mortgage Loan Group, the
beneficial interest of the Trust Fund in such REO Property) remaining in the
Trust Fund as contemplated by clause (ii) of Section 9.01(a) by giving written
notice to all the parties hereto no later than 60 days prior to the anticipated
date of exchange. In the event that the Sole Certificateholder(s) elect(s) to
exchange all of the Certificates for all of the Pooled Mortgage Loans and each
REO Property remaining in the Trust Fund in accordance with the preceding
sentence, such Sole Certificateholder(s), not later than the Business Day prior
to the Distribution Date on which the final distribution on the Certificates is
to occur, shall deposit in each Collection Account an amount in immediately
available funds equal to all amounts then due and owing to the Depositor, each
Master Servicer, each Primary Servicer, each Special Servicer, the Certificate
Administrator, the Tax Administrator and/or the Trustee hereunder (and their
respective agents) that may be withdrawn from such Collection Account, pursuant
to Section 3.05(a), or (without duplication between the Collection Accounts)
that may be withdrawn from the Distribution Account, pursuant to Section
3.05(b), but only to the extent that such amounts are not already on deposit in
such Collection Account. In addition, each Master Servicer shall transfer to the
Distribution Account all amounts required to be transferred by it to such
account on such Master Servicer Remittance Date from such Master
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Servicer's Collection Account pursuant to the first paragraph of Section
3.04(b). Upon confirmation that such final deposits have been made and following
the surrender of all the Certificates on the Final Distribution Date, the
Trustee shall release or cause to be released to the Sole Certificateholder(s)
(or any designee thereof), the Mortgage Files for the remaining Pooled Mortgage
Loans and shall execute all assignments, endorsements and other instruments
furnished to it by the Sole Certificateholder(s) as shall be necessary to
effectuate transfer of the remaining Pooled Mortgage Loans and REO Properties to
the Sole Certificateholder(s) (or any designee thereof). For federal income tax
purposes, such surrender and release shall be treated as a purchase of such
Mortgage Loans and REO Properties for an amount of cash equal to all amounts due
in respect thereof after the distribution of amounts remaining in the
Distribution Account, and a crediting of such amounts as a final distribution on
all remaining REMIC I Regular Interests, REMIC II Regular Interests and REMIC
III Regular Interests.
(c) Notice of any termination shall be given promptly by the
Certificate Administrator by letter to Certificateholders mailed (x) if such
notice is given in connection with the purchase of all the Pooled Mortgage Loans
and each REO Property remaining in the Trust Fund by one or both of the Master
Servicers, the General Special Servicer and/or any Controlling Class
Certificateholder(s), not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of each Class of Certificates and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Certificate Administrator therein designated. The
Certificate Administrator shall give such notice to the other parties hereto at
the time such notice is given to Certificateholders.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Certificate Administrator
shall distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts on deposit in the Distribution Account that is allocable to payments on
the relevant Class in accordance with Section 4.01. Any funds not distributed to
any Holder or Holders of Certificates of any Class on the Final Distribution
Date because of the failure of such Holder or Holders to tender their
Certificates shall, on such date, be set aside and held uninvested in trust and
credited to the account or accounts of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 9.01 shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Certificate Administrator shall
mail a second notice to the remaining non-tendering Certificateholders to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second notice
all such Certificates shall not have been surrendered for cancellation, the
Certificate Administrator, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable escheat laws, the Certificate
Administrator shall distribute to the Class R Certificateholders all unclaimed
funds and other assets which remain subject hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If any Controlling Class Certificateholder(s), one or both of
the Master Servicers, and/or the General Special Servicer purchase(s), or the
Sole Certificateholder(s) exchange(s) all of the Certificates for, all the
Pooled Mortgage Loans and each REO Property (or, in the case of any REO Property
related to any Mortgage Loan Group, the beneficial interest of the Trust Fund in
such REO Property) remaining in the Trust Fund as provided in Section 9.01, the
Trust and each REMIC Pool shall be terminated in accordance with the following
additional requirements, unless the purchasing party obtains at its own expense
and delivers to the Trustee and the Certificate Administrator an Opinion of
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Counsel, addressed to the Trustee and the Certificate Administrator, to the
effect that the failure of the Trust to comply with the requirements of this
Section 9.02 will not result in an Adverse REMIC Event with respect to any REMIC
Pool:
(i) the Certificate Administrator shall specify the first
day in the 90-day liquidation period in a statement attached to the final
Tax Return for each REMIC Pool, pursuant to Treasury Regulations Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder (as
evidenced by an Opinion of Counsel to such effect delivered on behalf and
at the expense of the purchasing party);
(ii) during such 90-day liquidation period and at or prior
to the time of making the final payment on the Certificates, the
Certificate Administrator shall sell or otherwise transfer all the Pooled
Mortgage Loans and each REO Property remaining in the Trust Fund to the
relevant Master Servicer(s), the General Special Servicer, the applicable
Controlling Class Certificateholder(s) or the Sole Certificateholder(s),
as the case may be, in exchange for cash and/or Certificates in accordance
with Section 9.01; and
(iii) at the time of the final payment on the Certificates,
the Certificate Administrator shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Certificates in accordance
with Section 4.01 all remaining cash on hand (other than cash retained to
meet claims), and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders of the
Certificates hereby authorize the Trustee to prepare and adopt, on behalf of the
Trust, a plan of complete liquidation of each REMIC Pool in the form of the
notice of termination provided for in Section 9.01(c) and in accordance with the
terms and conditions of this Agreement, which authorization shall be binding
upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 00.00.Xxx Administration.
(a) The Trustee shall elect to treat each REMIC Pool as a REMIC
under the Code and, if necessary, under Applicable State Law. Each such election
will be made on IRS Form 1066 or other appropriate federal tax or information
return or any appropriate state Tax Returns for the taxable year ending on the
last day of the calendar year in which the Certificates are issued. The Tax
Administrator shall prepare or cause to be prepared, submit to the Trustee for
execution and file each such IRS Form 1066, other appropriate federal tax or
information return or appropriate state Tax Return pursuant to subsection (c).
(b) The Holder of Certificates evidencing the largest Percentage
Interest in the Class R Certificates is hereby designated as the Tax Matters
Person of each REMIC Pool and, in such capacity, shall be responsible to act on
behalf of such REMIC Pool in relation to any tax matter or controversy, to
represent such REMIC Pool in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority, to request an
administrative adjustment as to any taxable year of such REMIC Pool, to enter
into settlement agreements with any governmental taxing agency with respect to
such REMIC Pool, to extend any statute of limitations relating to any tax item
of such REMIC Pool and otherwise to act on behalf of such REMIC Pool in relation
to any tax matter or controversy involving such REMIC Pool; provided that the
Tax Administrator is hereby irrevocably appointed and agrees to act (in
consultation with the Tax Matters Person for each REMIC Pool) as agent and
attorney-in-fact for the Tax Matters Person for each REMIC Pool in the
performance of its duties as such. The legal expenses and costs of any action
described in this Section 10.01(b) and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust payable out of amounts on
deposit in the Distribution Account as provided by Section 3.05(b) unless such
legal expenses and costs are incurred by reason of a Tax Matters Person's or the
Tax Administrator's misfeasance, bad faith or negligence in the performance of,
or such Person's reckless disregard of, its obligations or are expressly
provided by this Agreement to be borne by any party hereto.
(c) The Tax Administrator shall prepare or cause to be prepared,
submit to the Trustee for execution and file all of the Tax Returns in respect
of each REMIC Pool (other than Tax Returns required to be filed by a Master
Servicer pursuant to Section 3.09(g)) and all of the applicable income tax and
other information returns for each Grantor Trust Pool. The expenses of preparing
and filing such returns shall be borne by the Tax Administrator without any
right of reimbursement therefor.
(d) The Tax Administrator shall perform on behalf of each REMIC
Pool all reporting and other tax compliance duties that are the responsibility
of such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide: (i) to any Transferor of
a Class R Certificate, such information as is necessary for the application of
any tax relating to the transfer of a Class R Certificate to any Person who is
not a Permitted Transferee; (ii) to the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption as required); and (iii) to the IRS, the name,
title, address and telephone number of the Person who will serve as the
representative of each REMIC Pool.
(e) The Trustee and the Tax Administrator shall take such action
and shall cause each REMIC Pool to take such action as shall be necessary to
create or maintain the status thereof as a REMIC under the REMIC Provisions (and
the other parties hereto shall assist them, to the extent reasonably requested
by the Trustee or the Tax Administrator), to the extent that the Trustee or the
Tax Administrator, as applicable, has actual knowledge that any particular
action is required; provided that the Trustee and the Tax Administrator shall be
deemed to have knowledge of relevant tax laws.
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The Trustee or the Tax Administrator, as applicable, shall not knowingly take or
fail to take any action, or cause any REMIC Pool to take or fail to take any
action, that under the REMIC Provisions, if taken or not taken, as the case may
be, could result in an Adverse REMIC Event in respect of any REMIC Pool or an
Adverse Grantor Trust Event with respect to any Grantor Trust Pool, unless the
Trustee or the Tax Administrator, as applicable, has received an Opinion of
Counsel to the effect that the contemplated action or non-action, as the case
may be, will not result in an Adverse REMIC Event or an Adverse Grantor Trust
Event. None of the other parties hereto shall take or fail to take any action
(whether or not authorized hereunder) as to which the Trustee or the Tax
Administrator, as applicable, has advised it in writing that it has received an
Opinion of Counsel to the effect that an Adverse REMIC Event or an Adverse
Grantor Trust Event could occur with respect to such action. In addition, prior
to taking any action with respect to any REMIC Pool or the assets thereof, or
causing any REMIC Pool to take any action, which is not contemplated by the
terms of this Agreement, each of the other parties hereto will consult with the
Tax Administrator, in writing, with respect to whether such action could cause
an Adverse REMIC Event or an Adverse Grantor Trust Event to occur, and no such
other party shall take any such action or cause any REMIC Pool to take any such
action as to which the Tax Administrator has advised it in writing that an
Adverse REMIC Event or an Adverse Grantor Trust Event could occur. The Tax
Administrator may consult with counsel to make such written advice, and the cost
of same shall be borne by the party seeking to take the action not permitted by
this Agreement (and in no event by the Trust Fund or the Tax Administrator).
(f) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)),
then such tax, together with all incidental costs and expenses (including
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Trustee, if such tax arises out of or results from a breach of any of its
obligations under Article IV, Article VIII or this Section 10.01; (ii) the
Certificate Administrator, if such tax arises out of or results from a breach by
the Certificate Administrator of any of its obligations under Article IV,
Article VIII or this Section 10.01 (which breach constitutes negligence, bad
faith or willful misconduct); (iii) the Tax Administrator, if such tax arises
out of or results from a breach by the Tax Administrator of any of its
obligations under Article IV, Article VIII or this Section 10.01 (which breach
constitutes negligence, bad faith or willful misconduct); (iv) the applicable
Master Servicer, if such tax arises out of or results from a breach by such
Master Servicer of any of its obligations under Article III or this Section
10.01; (v) the applicable Special Servicer, if such tax arises out of or results
from a breach by such Special Servicer of any of its obligations under Article
III or this Section 10.01; or (vi) the Trust, out of the Trust Fund (exclusive
of the Grantor Trust Pools), in all other instances. If any tax is imposed on
any Grantor Trust Pool, such tax, together with all incidental costs and
expenses (including, without limitation, penalties and reasonable attorneys'
fees), shall be charged to and paid by: (i) the applicable Special Servicer, if
such tax arises out of or results from a breach by such Special Servicer of any
of its obligations under Article III or this Section 10.01; (ii) the applicable
Master Servicer, if such tax arises out of or results from a breach by such
Master Servicer of any of its obligations under Article III or this Section
10.01; (iii) the Trustee, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under Article IV, Article VIII or this
Section 10.01; (iv) the Certificate Administrator, if such tax arises out of or
results from a breach by the Certificate Administrator of any of its obligations
under Article IV, Article VIII or this Section 10.01 (which breach constitutes
negligence, bad faith or willful misconduct); (v) the Tax Administrator, if such
tax arises out of or results from a breach by the Tax Administrator of any of
its obligations under Article IV, Article VIII or this Section 10.01 (which
breach constitutes negligence, bad faith or willful misconduct); or (iv) the
Trust, out of the portion of the Trust Fund constituting such Grantor Trust
Pool, in all other instances. Consistent with the foregoing, any tax permitted
to be incurred by a Special Servicer pursuant to Section 3.17(a) shall be
charged to and paid by the Trust. Any such amounts payable by the Trust in
respect of taxes shall be paid by the Trustee out of amounts on deposit in the
Distribution Account.
(g) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool and Grantor Trust
Pool on a calendar year and an accrual basis.
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(h) Following the Startup Day for each REMIC Pool, the Trustee
shall not (except as contemplated by Section 2.03) accept any contributions of
assets to any REMIC Pool unless it shall have received an Opinion of Counsel (at
the expense of the party seeking to cause such contribution and in no event at
the expense of the Trust Fund or the Trustee) to the effect that the inclusion
of such assets in such REMIC Pool will not result in an Adverse REMIC Event in
respect of such REMIC Pool or an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool.
(i) None of the Master Servicers, the Special Servicers or the
Trustee shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any Pooled Mortgage Loan (except
in connection with (A) a Breach or Document Defect regarding any Pooled Mortgage
Loan, (B) the foreclosure, default or reasonably foreseeable material default of
a Pooled Mortgage Loan, including the sale or other disposition of a Mortgaged
Property acquired by foreclosure, deed in lieu of foreclosure or otherwise, (C)
the bankruptcy of any REMIC Pool, or (D) the termination of the Trust pursuant
to Article IX of this Agreement); (ii) the sale or disposition of any
investments in any Investment Account for gain; or (iii) the acquisition of any
assets for the Trust (other than a Mortgaged Property acquired through
foreclosure, deed in lieu of foreclosure or otherwise in respect of a defaulted
Pooled Mortgage Loan, other than a Replacement Pooled Mortgage Loan substituted
for a Deleted Pooled Mortgage Loan and other than Permitted Investments acquired
in connection with the investment of funds in an Account or an interest in a
single member limited liability company, as provided in Section 3.16); in any
event unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition and in no event at the
expense of the Trust Fund or the Trustee) to the effect that such sale,
disposition, or acquisition will not result in an Adverse REMIC Event in respect
of any REMIC Pool or an Adverse Grantor Trust Event with respect to any Grantor
Trust Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the
Master Servicers, the Special Servicers or the Trustee shall enter into any
arrangement by which any REMIC Pool will receive a fee or other compensation for
services or, to the extent it is within the control of such Person, permit any
REMIC Pool to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code. At all times as may be required by the Code,
each of the respective parties hereto (to the extent it is within its control)
shall take necessary actions within the scope of its responsibilities as more
specifically set forth in this Agreement such that it does not cause
substantially all of the assets of each REMIC Pool to fail to consist of
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Within 30 days after the related Startup Day, the Tax
Administrator shall obtain an identification number by filing IRS Form SS-4 with
the IRS for each REMIC Pool and prepare and file with the IRS, with respect to
each REMIC Pool, IRS Form 8811 "Information Return for Real Estate Mortgage
Investment Conduits (REMICs) and Issuers of Collateralized Debt Obligations".
(l) The parties intend that the portion of the Trust Fund
consisting of Post-ARD Additional Interest on the ARD Mortgage Loans in the
Mortgage Pool and any successor REO Pooled Mortgage Loans with respect thereto
and the Class V Sub-Account shall constitute, and that the affairs of such
portion of the Trust Fund shall be conducted so as to qualify as, a Grantor
Trust, and the provisions hereof shall be interpreted consistently with this
intention. In addition, the parties intend that the portion of the Trust Fund
consisting of the REMIC I Residual Interest, the REMIC II Residual Interest and
the REMIC III Residual Interest shall constitute, and the affairs of such
portion of the Trust Fund shall be conducted so as to qualify as, a Grantor
Trust, and the provisions hereof shall be interpreted consistently with this
intention. The Tax Administrator shall also perform on behalf of each Grantor
Trust Pool all reporting and other tax compliance duties that are the
responsibility of such Grantor Trust Pool under the Code or any compliance
guidance issued by the IRS or any state or local taxing authorities. The
expenses of preparing and filing such returns shall be borne by the Tax
Administrator.
(m) Unless notified by the beneficial owner of a Class V
Certificate or Class R Certificate that either such Certificate is held by a
"middleman," as defined in the WHFIT Regulations, the Tax Administrator shall be
entitled to treat Grantor Trust V or Grantor Trust R, as applicable, as a
Grantor Trust that is not a WHFIT. The Tax Administrator
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will report as required under the WHFIT Regulations to the extent such
information as is reasonably necessary to enable the Tax Administrator to do so,
and is not in its possession, is provided to the Tax Administrator on a timely
basis. The Tax Administrator will not be liable for any tax reporting penalties
that may arise under the WHFIT Regulations as a result of a determination by the
IRS that is contrary to the first sentence of this paragraph.
(n) The Tax Administrator, in its discretion, will report
required WHFIT information using either the cash or accrual method, except to
the extent the WHFIT Regulations specifically require a different method. The
Tax Administrator will be under no obligation to determine whether any
Certificateholder uses the cash or accrual method. The Tax Administrator will
make available WHFIT information to Certificateholders annually. In addition,
the Tax Administrator will not be responsible or liable for providing
subsequently amended, revised or updated information to any Certificateholder,
unless requested by the Certificateholder.
(o) The Tax Administrator shall not be liable for failure to meet
the reporting requirements of the WHFIT Regulations nor for any penalties
thereunder if such failure is due to: (i) the lack of reasonably necessary
information being provided to the Tax Administrator, (ii) incomplete, inaccurate
or untimely information being provided to the Tax Administrator or (iii) the
inability of the Tax Administrator, after good faith efforts, to alter its
existing information reporting systems to capture information necessary to fully
comply with the WHFIT Regulations for the 2007 calendar year. Each owner of a
class of securities representing, in whole or in part, beneficial ownership of
an interest in a WHFIT, by acceptance of its interest in such class of
securities, will be deemed to have agreed to provide the Tax Administrator with
information regarding any sale of such securities, including the price, amount
of proceeds and date of sale. Absent receipt of such information, and unless
informed otherwise by the Depositor, the Tax Administrator will assume there is
no secondary market trading of WHFIT interests.
(p) To the extent required by the WHFIT Regulations, the Tax
Administrator will use reasonable efforts to publish on an appropriate website
the CUSIPs for the Certificates that represent ownership of a WHFIT. The CUSIPs
so published will represent the Rule 144A CUSIPs. The Tax Administrator will not
publish any associated Regulation S CUSIPs. The Tax Administrator will make
reasonable good faith efforts to keep the website accurate and updated to the
extent CUSIPs have been received. Absent the receipt of a CUSIP, the Tax
Administrator will use a reasonable identifier number in lieu of a CUSIP. The
Tax Administrator will not be liable for investor reporting delays that result
from the receipt of inaccurate or untimely CUSIP information.
(q) The Tax Administrator shall have no obligation to monitor
whether a Grantor Trust has become a WHFIT following the Closing Date, and shall
report under the WHFIT Regulations only to the extent it receives written notice
of the same.
(r) The Tax Administrator shall be entitled to additional
reasonable compensation for changes in reporting required in respect of the
WHFIT Regulations that arise as a result of a change in the WHFIT Regulations or
a change in interpretation of the WHFIT Regulations by the IRS or the Depositor
or its counsel, if such change requires, in the Tax Administrator's sole
discretion, a material increase in the Tax Administrator's reporting obligations
in respect of the related Grantor Trust.
SECTION 10.02.The Depositor, the Master Servicers and the Special
Servicers to Cooperate with the Tax Administrator.
(a) The Depositor shall provide or cause to be provided to the
Tax Administrator, within ten days after the Closing Date, all information or
data that the Tax Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including
the price, yield, prepayment assumption and projected cash flow of the
Certificates.
(b) Each of the Master Servicers and the Special Servicers shall
furnish such reports, certifications and information in its possession, and
access to such books and records maintained thereby, as may relate to the
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Certificates or the Trust Fund and as shall be reasonably requested by the Tax
Administrator in order to enable it to perform its duties under this Article X.
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ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
SECTION 11.01.Intent of the Parties; Reasonableness.
Except with respect to Section 11.11, Section 11.12 and Section
11.13, the parties hereto acknowledge and agree that the purpose of Article XI
of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission.
Neither the Depositor nor either Master Servicer shall exercise its rights to
request delivery of information or other performance under these provisions
other than in good faith, or (except with respect to Section 11.11, Section
11.12 or Section 11.13) for purposes other than compliance with the Securities
Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations of the Commission thereunder. The parties hereto acknowledge that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agree to comply with requests made by the Depositor
or the Master Servicers in good faith for delivery of information under these
provisions on the basis of evolving interpretations of the requirements of
Regulation AB. In connection with the Bear Xxxxxxx Commercial Mortgage
Securities Inc., Series 2007-PWR18 transaction, each of the Master Servicers,
the Special Servicers, the Primary Servicers, the Trustee and the Certificate
Administrator shall cooperate fully with the good faith requests of the
Depositor and the Master Servicers, as applicable, to deliver or make available
to the Depositor or the Master Servicers, as applicable (including any of their
assignees or designees), any and all statements, reports, certifications,
records and any other information in its possession and necessary in the good
faith determination of the Depositor or the Master Servicers, as applicable, to
permit the Depositor to comply with the provisions of Regulation AB, together
with such disclosure relating to such Master Servicer, such Special Servicer,
such Primary Servicer, the Trustee and the Certificate Administrator, as
applicable, and any Sub-Servicer, or the Servicing of the Mortgage Loans,
reasonably believed by the Depositor or the Master Servicers, as applicable, to
be necessary in order to effect such compliance. For the avoidance of doubt,
none of the Master Servicers, the Primary Servicers or the Special Servicers is
responsible to make filings with the Commission.
SECTION 11.02.[Reserved.]
SECTION 11.03.Information to be Provided by the Master Servicers,
the Special Servicers, the Primary Servicers and the
Certificate Administrator.
(a) For so long as the Trust, and with respect to any Serviced
Non-Pooled Pari Passu Companion Loan that is deposited into another commercial
mortgage loan securitization transaction (an "Other Securitization"), such Other
Securitization, is subject to the reporting requirements of the Exchange Act, as
promptly as practicable following written notice to or discovery of such
information by a Master Servicer, a Special Servicer, a Primary Servicer, the
Trustee or the Certificate Administrator, in each case as to itself, such person
shall provide (and, each Master Servicer, each Special Servicer, each Primary
Servicer and the Certificate Administrator as applicable, shall (a) use
reasonable efforts to cause each Sub-Servicer (other than any party or signatory
to this Agreement or Nationwide as the primary servicer under the Nationwide
Primary Servicing Agreement) with which it has entered into a servicing
relationship on or prior to the Closing Date with respect to the Mortgage Loans
and (b) cause each Sub-Servicer (other than any party or signatory to this
Agreement or Nationwide as the primary servicer under the Nationwide Primary
Servicing Agreement) with which it has entered into a servicing relationship
after the Closing Date with respect to the Mortgage Loans, to provide) to the
Depositor (in writing and in form and substance reasonably satisfactory to the
Depositor) the information specified in paragraph (b) of this Section 11.03.
(b) For so long as the Trust, and with respect to any Serviced
Non-Pooled Pari Passu Companion Loan that is deposited into an Other
Securitization, such Other Securitization, is subject to the reporting
requirements of
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the Exchange Act, the applicable Master Servicer, the applicable Special
Servicer, the applicable Primary Servicer, the Trustee and the Certificate
Administrator shall (and each of the applicable Master Servicer, the applicable
Special Servicer, the applicable Primary Servicer, the Trustee and the
Certificate Administrator, as applicable, shall (a) use reasonable efforts to
cause each Sub-Servicer (other than any party or signatory to this Agreement or
Nationwide as the primary servicer under the Nationwide Primary Servicing
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Sub-Servicer (other than any party or signatory to this Agreement or Nationwide
as the primary servicer under the Nationwide Primary Servicing Agreement) with
which it has entered into a servicing relationship after the Closing Date with
respect to the Mortgage Loans, to) (i) notify the Depositor, or the depositor in
such Other Securitization, in writing of (A) any litigation or governmental
proceedings pending against the applicable Master Servicer, the applicable
Special Servicer, the applicable Primary Servicer, the Trustee, the Certificate
Administrator or such Sub-Servicer, as the case may be, or with respect to any
of its property, that, in each such case, would be material to
Certificateholders or the certificateholders of such Other Securitization and
(B)(x) in the case of any such party other than the General Special Servicer,
(I) any affiliations of the type described in Item 1119(a) of Regulation AB that
develop following the Closing Date between the applicable Master Servicer, the
applicable Special Servicer, the applicable Primary Servicer, the Trustee or the
Certificate Administrator (or, if applicable, any Sub-Servicer) (and any other
parties identified in writing by the requesting party) and between such parties
and the Depositor or any Pooled Mortgage Loan Seller, and (II) any relationships
that develop after the Closing Date between the applicable Master Servicer, the
applicable Special Servicer, the applicable Primary Servicer, the Trustee or the
Certificate Administrator (or, if applicable, any Sub-Servicer) (and any other
parties identified in writing by the requesting party), on the one hand and the
Depositor or any Pooled Mortgage Loan Seller on the other hand of the type
described in Item 1119(b) or (c) of Regulation AB, and (y) in the case of the
General Special Servicer, any affiliations of the type described in Item 1119 of
Regulation AB or relationships of the type described in Item 1119 of Regulation
AB that develop following the Closing Date between the General Special Servicer
(or, if applicable, any Sub-Servicer therefor), on the one hand, and a Master
Servicer, the Loan Specific Special Servicer, a Primary Servicer, the Trustee or
the Certificate Administrator on the other, as the case may be, as such
affiliation or relationship relates to the Bear Xxxxxxx Commercial Mortgage
Securities Inc., Series 2007-PWR18 transaction (or an Other Securitization, if
applicable) and (ii) provide to the Depositor, or the depositor in such Other
Securitization, a description of such legal proceedings, affiliations or
relationships, in each case, in a form that would enable the Depositor to
satisfy its reporting obligations under Item 1117 or 1119 of Regulation AB, as
applicable.
(c) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, in connection with the succession to a Master
Servicer, a Special Servicer, a Primary Servicer, any Additional Servicer, any
Sub-Servicer or the Trustee as servicer or trustee under this Agreement by any
Person (i) into which a Master Servicer, a Special Servicer, a Primary Servicer,
any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be,
may be merged or consolidated, or (ii) which may be appointed as a successor to
a Master Servicer, a Special Servicer, a Primary Servicer, any Additional
Servicer, any Sub-Servicer or the Trustee, as the case may be, the applicable
Master Servicer, the applicable Special Servicer, the applicable Primary
Servicer, any Additional Servicer, any Sub-Servicer or the Trustee, as the case
may be, shall (and each of the applicable Master Servicer, the applicable
Special Servicer, the applicable Primary Servicer or the Trustee, as applicable,
shall (a) use reasonable efforts to cause each Additional Servicer and each
Sub-Servicer (other than any party or signatory to this Agreement or Nationwide
as the primary servicer under the Nationwide Primary Servicing Agreement) with
which it has entered into a servicing relationship on or prior to the Closing
Date with respect to the Mortgage Loans and (b) cause each Additional Servicer
and each Sub-Servicer (other than any party or signatory to this Agreement or
Nationwide as the primary servicer under the Nationwide Primary Servicing
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to) provide to the Depositor,
at least 10 Business Days prior to the effective date of such succession or
appointment, as long as such disclosure prior to such effective date would not
be violative of any applicable law or confidentiality agreement, otherwise
within a reasonable period of time after such effective date (x) written notice
to the Depositor of such succession or appointment and (y) in writing and in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor so that it may comply with its reporting
obligation under Item 6.02 of Form 8-K as it relates to servicing with respect
to the Pooled Mortgage Loans or any class of Certificates.
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(d) With respect to any Serviced Non-Pooled Pari Passu Companion
Loan that is deposited into an Other Securitization, the applicable Master
Servicer, the applicable Primary Servicer, the applicable Special Servicer, the
Trustee and the Certificate Administrator will take all actions reasonably
requested of it to enable such Other Securitization to comply with Regulation
AB. Without limiting the foregoing, the applicable Master Servicer, the
applicable Primary Servicer, the applicable Special Servicer, the Trustee and
the Certificate Administrator will, if reasonably requested by the depositor for
such Other Securitization, provide disclosure (which, except as otherwise agreed
to by the applicable Master Servicer, the applicable Primary Servicer, the
applicable Special Servicer, the Trustee or the Certificate Administrator, as
applicable, with the applicable party(ies) to such Other Securitization (and
notwithstanding anything to the contrary stated or implied in this Section
11.03) shall be without representation or warranty) regarding the applicable
Master Servicer, the applicable Primary Servicer, the applicable Special
Servicer, the Trustee and the Certificate Administrator, respectively, as
required by Regulation AB for inclusion in disclosure documents with respect to
such Other Securitization.
SECTION 11.04.[Reserved.]
SECTION 11.05.Filing Obligations.
Each Master Servicer, each Special Servicer, each Primary Servicer,
the Certificate Administrator, the Trustee and each Sub-Servicer, shall (a) use
reasonable efforts to cause each Sub-Servicer (other than any party or signatory
to this Agreement or Nationwide as the primary servicer under the Nationwide
Primary Servicing Agreement) with which it has entered into a servicing
relationship on or prior to the Closing Date with respect to the Mortgage Loans
and (b) cause each Sub-Servicer (other than any party or signatory to this
Agreement or Nationwide as the primary servicer under the Nationwide Primary
Servicing Agreement) with which it has entered into a servicing relationship
after the Closing Date with respect to the Mortgage Loans, to, reasonably
cooperate with the Depositor in connection with the satisfaction of the Trust's
reporting requirements under the Exchange Act.
SECTION 11.06.Form 10-D Filings.
Within 15 days after each Distribution Date (the "Form 10-D Filing
Deadline") (subject to permitted extensions under the Exchange Act), the
Certificate Administrator shall prepare and file on behalf of the Trust any Form
10-D required by the Exchange Act, in form and substance as required by the
Exchange Act. The Certificate Administrator shall file each Form 10-D with a
copy of the related Distribution Date Statement attached thereto. Any necessary
disclosure in addition to the Distribution Date Statement that is required to be
included on Form 10-D ("Additional Form 10-D Disclosure") shall, pursuant to the
paragraph immediately below, be reported by the parties set forth on Schedule IX
and directed to the Depositor and the Certificate Administrator for approval by
the Depositor. The Certificate Administrator will have no duty or liability for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure (other than such Additional Form 10-D Disclosure which is to be
reported by it as set forth on Schedule IX) absent such reporting, direction and
approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Schedule IX hereto, within 5 calendar days
after the related Distribution Date, each Person identified on Schedule IX shall
be required to provide to the Depositor and the Certificate Administrator (or,
with respect to any Serviced Non-Pooled Pari Passu Companion Loan that is
deposited into an Other Securitization, the depositor and the trustee in such
Other Securitization), to the extent known by such person, the form and
substance of the corresponding Additional Form 10-D Disclosure set forth on
Schedule IX, if applicable, and in form readily convertible to an
XXXXX-compatible form, or in such other form as otherwise agreed by the
Depositor, the Certificate Administrator and such party. A report thereof shall
not be required from a Person if the contents of such report would be empty.
Unless otherwise directed by the Depositor, and subject to any comments received
to such disclosure from the Depositor by the 2nd calendar day after such 5th
calendar day after the related Distribution Date, the Certificate Administrator
shall include the form and substance of the Additional Form 10-D Disclosure on
the related Form 10-D. The Depositor will be responsible for any reasonable fees
and expenses incurred by the Certificate Administrator in connection with
including any Additional Form 10-D
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Disclosure on Form 10-D pursuant to this paragraph. Any notice delivered to the
Certificate Administrator pursuant to this paragraph shall be in the form
attached hereto as Exhibit Q and delivered by facsimile to (000) 000-0000 and by
email to xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx, or such other address as may
hereafter be furnished by the Certificate Administrator to the other parties in
writing.
On or prior to the 12th calendar day after the related Distribution
Date the Certificate Administrator shall prepare and deliver electronically the
Form 10-D to the Depositor for review. Form 10-D requires the registrant to
indicate (by checking "yes" or "no") that it "(1) has filed all reports required
to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12
months (or for such shorter period that the registrant was required to file such
reports) and (2) has been subject to such filing requirements for the past 90
days." The Depositor hereby represents to the Certificate Administrator that the
Depositor has filed all such required reports during the preceding 12 months and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Certificate Administrator in writing, no later than
the 5th calendar day after the related Distribution Date during any year in
which the Trust is required to file a Form 10-D if the answer to the questions
should be "no"; provided, however, that if the failure of the Depositor to have
filed such required reports arises in connection with the securitization
contemplated by this Agreement, the Certificate Administrator shall be deemed to
have notice of such failure (only with respect to Exchange Act reports prepared
or required to be prepared and filed by the Certificate Administrator) without
being notified by the Depositor. The Certificate Administrator shall be entitled
to rely on such representations in preparing, executing and/or filing any Form
10-D. No later than the end of business on the 13th calendar day after the
related Distribution Date, the Depositor shall notify the Certificate
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D, and shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Certificate Administrator. The
Certificate Administrator shall file such Form 10-D, upon signature thereof as
provided in Section 11.16, not later than 5:00 pm (New York City time) on the
15th calendar day after the related Distribution Date. If a Form 10-D cannot be
filed on time or if a previously filed Form 10-D needs to be amended, the
Certificate Administrator will follow the procedures set forth in Section
11.10(b). After filing with the Commission, the Certificate Administrator shall
promptly, and no later than one Business Day after such filing, pursuant to
Section 4.02, make available on its internet website a final executed copy of
each Form 10-D prepared and filed by the Certificate Administrator. The parties
to this Agreement acknowledge (and each Additional Servicer and each Servicing
Function Participant shall be required to acknowledge) that the performance by
the Certificate Administrator of its duties under this Section 11.06 related to
the timely preparation and filing of Form 10-D is contingent upon such parties
(and, to the extent applicable, any Additional Servicer or Servicing Function
Participant) observing all applicable deadlines in the performance of their
duties under this Section 11.06. The Certificate Administrator shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare, arrange for execution or file such Form 10-D
where such failure results from the Certificate Administrator's inability or
failure to receive on a timely basis any information from any other party hereto
needed to prepare, arrange for execution or file such Form 10-D, not resulting
from its own negligence, bad faith or willful misconduct. However, (a) if a Form
10-D is permitted to be filed notwithstanding any missing information for
inclusion therein, the Certificate Administrator shall promptly inform the
Depositor and nonetheless file such Form 10-D at the direction of the Depositor
and, if authorized under Regulation AB, provide an explanation approved by the
Depositor (based solely on such notice regarding such Form 10-D as may have been
delivered to it) of the circumstances and (b) where information from such other
party for inclusion in a Form 10-D is not received on a timely basis but is
subsequently provided within a time period that may allow for the timely filing
of the applicable Form 10-D or an amendment thereto, then the Certificate
Administrator shall use reasonable efforts to properly prepare, arrange for
execution and file such Form 10-D or amendment thereto.
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It is hereby acknowledged that, with respect to each Pooled Mortgage
Loan (if any) that is identified on Schedule XII hereto, the Mortgaged Property
or the Borrower is a "significant obligor" with respect to the Trust
representing more than 10% and less than 20% of the aggregate initial Stated
Principal Balance of the Pooled Mortgage Loans for purposes of Regulation AB,
and, accordingly, Item 6 of Form 10-D provides for the inclusion of updated net
operating income of such "significant obligor" as required by Item 1112(b)(1) of
Regulation AB on each Form 10-D to be filed by the Trust with respect to a
Distribution Date immediately following the date in which each financial
statement of such "significant obligor" is required to be delivered to the
lender under the related Mortgage Loan Documents. If the related Pooled Mortgage
Loan is a Serviced Mortgage Loan and either it constitutes a Specially Serviced
Mortgage Loan or the related Mortgaged Property constitutes an REO Property, the
applicable Special Servicer shall forward any financial statement that it
receives or causes to be prepared under Section 3.12(b) to the applicable Master
Servicer promptly after the applicable Special Servicer's receipt or preparation
thereof. Whether or not the related Pooled Mortgage Loan is a Serviced Mortgage
Loan, promptly following receipt of an updated financial statement of such
"significant obligor" (whether from the related Borrower, the Non-Trust Master
Servicer under the Non-Trust Servicing Agreement or the Special Servicer under
this Agreement), the applicable Master Servicer shall update the following
columns of the CMSA Loan Periodic Update File for the applicable Distribution
Date: columns BB, BP, BT and BU (corresponding to fields 54--"Preceding Fiscal
Year NOI", 68--"Most Recent NOI", 72--"Most Recent Financial As of Start Date"
and 73--"Most Recent Financial As of End Date"), as such column references and
field numbers may change from time to time. Whether or not the related Pooled
Mortgage Loan is a Serviced Mortgage Loan, if the applicable Master Servicer
does not receive a financial statement of such "significant obligor" within ten
Business Days after the date such financial statement is required or would have
been required to be delivered under the related Mortgage Loan Documents (which,
for the avoidance of doubt, is the date set forth opposite such Pooled Mortgage
Loan on Schedule XII), (i) such Master Servicer shall notify the Depositor (and
either (x) if such Pooled Mortgage Loan is a Serviced Mortgage Loan that is a
Specially Serviced Mortgage Loan, the applicable Special Servicer hereunder, or
(y) in the case of a Non-Trust Serviced Pooled Mortgage Loan, the applicable
Non-Trust Master Servicer under the Non-Trust Servicing Agreement) that it has
not received such financial statement and (ii) such Master Servicer shall use
efforts consistent with the Servicing Standard (taking into account, in
addition, the ongoing reporting obligations of the Depositor under the Exchange
Act) to continue to attempt to obtain such financial statement from the related
Borrower (if such Pooled Mortgage Loan is a Serviced Mortgage Loan that is not a
Specially Serviced Mortgage Loan), the Non-Trust Master Servicer (if such Pooled
Mortgage Loan is a Non-Trust-Serviced Pooled Mortgage Loan) or applicable
Special Servicer (if such Pooled Mortgage loan is a Serviced Mortgage Loan that
is a Specially Serviced Mortgage Loan). In such circumstances, the applicable
Master Servicer shall retain written evidence of each instance in which it
attempts to contact the related Borrower to obtain the required financial
statement and is unsuccessful and, within five Business Days prior to the date
in which a Form 10-D is required to be filed by the Trust, shall forward an
Officer's Certificate with respect to such attempts to the Certificate
Administrator and the Depositor. Such Officer's Certificate shall be delivered
to the Certificate Administrator at Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: SEC Reporting Group, or transmitted
via electronic mail to xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx (or such other
address or electronic mail address as the Certificate Administrator may specify
upon not less than ten (10) Business Days advance notice), and transmitted via
electronic mail to the Depositor at the electronic mail address therefor set
forth in Section 11.07.
If the Certificate Administrator has not received updates to the
relevant columns of the CMSA Loan Periodic Update File as described above for
any applicable Distribution Date, it shall include the following statement with
respect to Item 6 on the related Form 10-D: "The information required for this
Item 6 rests with a person or entity which is not affiliated with the
registrant. Oral and written requests have been made on behalf of the
registrant, to the extent required under the related pooling and servicing
agreement, to obtain the information required for this Item 6, and the
registrant has been unable to obtain such information to include on this Form
10-D by the related filing deadline. The information is therefore being omitted
herefrom in reliance on Rule 12b-21 under the Securities Exchange Act of 1934,
as amended" or such other statement as is directed by the Depositor.
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SECTION 11.07.Form 10-K Filings.
Within 90 days after the end of each fiscal year of the Trust or
such earlier date as may be required by the Exchange Act (the "Form 10-K Filing
Deadline") (it being understood that the fiscal year for the Trust ends on
December 31st of each year), commencing in March 2008, the Certificate
Administrator shall prepare and file on behalf of the Trust a Form 10-K, in form
and substance as required by the Exchange Act. Each such Form 10-K shall include
the following items, in each case to the extent they have been delivered to the
Certificate Administrator within the applicable time frames set forth in this
Agreement, (i) an annual compliance statement for each Reporting Servicer, as
described under Section 11.11, (ii)(A) the annual reports on assessment of
compliance with Servicing Criteria for each Reporting Servicer, as described
under Section 11.12, and (B) if any Reporting Servicer's report on assessment of
compliance with Servicing Criteria described under Section 11.12 identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Reporting Servicer's report on assessment of compliance
with Servicing Criteria described under Section 11.12 is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and an
explanation as to why such report is not included, (iii)(A) the registered
public accounting firm attestation report for each Reporting Servicer, as
described under Section 11.13, and (B) if any registered public accounting firm
attestation report described under Section 11.13 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation as to why such report is not included,
and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 11.08. Any
disclosure or information in addition to (i) through (iv) above that is required
to be included on Form 10-K ("Additional Form 10-K Disclosure") shall, pursuant
to the paragraph immediately below, be reported by the parties set forth on
Schedule X and directed to the Depositor and the Certificate Administrator for
approval by the Depositor. The Certificate Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-K Disclosure (other than such Additional Form 10-K Disclosure which is to be
reported by it as set forth on Schedule X) absent such reporting, direction and
approval. However, where information from such other party for inclusion in a
Form 10-K is not received on a timely basis but is subsequently provided within
a time period that may allow for the timely filing of the applicable Form 10-K
or an amendment thereto, then the Certificate Administrator shall use reasonable
efforts to properly prepare, arrange for execution and file such Form 10-K or
amendment thereto.
For so long as the Trust, and with respect to any Serviced
Non-Pooled Pari Passu Companion Loan, such Other Securitization, is subject to
the reporting requirements of the Exchange Act, as set forth on Schedule X
hereto, no later than March 7th of each year subsequent to the fiscal year that
the Trust is subject to the Exchange Act reporting requirements, commencing in
2008, each Person identified on such schedule shall be required to provide to
the Depositor (or, with respect to any Serviced Non-Pooled Pari Passu Companion
Loan that is deposited into an Other Securitization, the depositor and the
trustee in such Other Securitization) and the Certificate Administrator, to the
extent known by such Person, the form and substance of the corresponding
Additional Form 10-K Disclosure as set forth on Schedule X, if applicable, and
in form readily convertible to an XXXXX-compatible form, or in such other form
as otherwise agreed by the Depositor, the Certificate Administrator and such
Person (except that delivery of reports on an assessment of compliance with
Relevant Servicing Criteria and related attestation reports of registered public
accounting firms shall be governed by Section 11.12 and Section 11.13). Unless
otherwise directed by the Depositor, and subject to any comments received to
such disclosure from the Depositor by March 15th, the Certificate Administrator
shall include the form and substance of the Additional Form 10-K Disclosure on
the related Form 10-K. The Depositor will be responsible for any reasonable fees
and expenses incurred by the Certificate Administrator in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph. Any notice delivered to the Certificate Administrator pursuant to
this paragraph shall be in the form attached hereto as Exhibit Q and delivered
by facsimile to (000) 000-0000 and by email to
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx, or such other address as may hereafter be
furnished by the Certificate Administrator to the other parties in writing.
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On or prior to 3:00 p.m. (New York City time) March 23rd, the
Certificate Administrator shall prepare and deliver electronically a draft copy
of the Form 10-K to the Depositor for review. Form 10-K requires the registrant
to indicate (by checking "yes" or "no") that it "(1) has filed all reports
required to be filed by Section 13 or 15(d) of the Exchange Act during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports) and (2) has been subject to such filing requirements for
the past 90 days." The Depositor hereby represents to the Certificate
Administrator that the Depositor has filed all such required reports during the
preceding 12 months and that it has been subject to such filing requirement for
the past 90 days. The Depositor shall notify the Certificate Administrator in
writing, no later than the 15th calendar day of March during any year in which
the Trust is required to file a Form 10-K if the answer to the questions should
be "no" ; provided, however, that if the failure of the Depositor to have filed
such required reports arises in connection with the securitization contemplated
by this Agreement, the Certificate Administrator shall be deemed to have notice
of such failure (only with respect to Exchange Act reports prepared or required
to be prepared and filed by the Certificate Administrator) without being
notified by the Depositor. The Certificate Administrator shall be entitled to
rely on such representations in preparing, executing and/or filing any Form
10-K. No later than 5:00 pm (New York City time) on the 4th Business Day prior
to the Form 10-K Filing Deadline, a senior officer in charge of securitization
of the Depositor notify the Certificate Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K and
shall sign the Form 10-K and return an electronic or fax copy of such signed
Form 10-K (with an original executed hard copy to follow by overnight mail) to
the Certificate Administrator. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Certificate Administrator
will follow the procedures set forth in Section 11.10(b). After filing with the
Commission, the Certificate Administrator shall, pursuant to Section 4.02, make
available on its internet website a final executed copy of each Form 10-K
prepared and filed by the Certificate Administrator. All communications to the
Depositor under this Article XI shall be delivered telephonically, to the
telecopy number set forth in Section 12.05 (or as otherwise specified by the
Depositor) or by electronic mail to "xxxXXxxxxxxxxxxxxx@xxxx.xxx" or such other
electronic mail address as the Depositor may specify upon not less than ten (10)
Business Days advance notice. The parties to this Agreement acknowledge (and
each Additional Servicer and each Servicing Function Participant shall be
required to acknowledge) that the performance by the Certificate Administrator
of its duties under this Section 11.07 related to the timely preparation and
filing of Form 10-K is contingent upon such parties (and, to the extent
applicable, any Additional Servicer or Servicing Function Participant) observing
all applicable deadlines in the performance of their duties under this Article
XI. The Certificate Administrator shall have no liability with respect to any
failure to properly prepare, arrange for execution or file such Form 10-K
resulting from the Certificate Administrator's inability or failure to receive
on a timely basis any information from any other party hereto needed to prepare,
arrange for execution or file such Form 10-K on a timely basis, not resulting
from its own negligence, bad faith or willful misconduct. However, (a) if a Form
10-K is permitted to be filed notwithstanding any missing information for
inclusion therein, the Certificate Administrator shall promptly inform the
Depositor and nonetheless file such Form 10-K at the direction of the Depositor
and, if authorized under Regulation AB, provide an explanation approved by the
Depositor (based solely on such notice regarding such Form 10-K as may have been
delivered to it) of the circumstances and (b) where information from such other
party for inclusion in a Form 10-K is not received on a timely basis but is
subsequently provided within a time period that may allow for the timely filing
of the applicable Form 10-K or an amendment thereto, then the Certificate
Administrator shall use reasonable efforts to properly prepare, arrange for
execution and file such Form 10-K or amendment thereto.
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It is hereby acknowledged that, with respect to each Pooled Mortgage
Loan (if any) that is identified on Schedule XII hereto, the Mortgaged Property
or the Borrower is a "significant obligor" with respect to the Trust
representing more than 10% and less than 20% of the aggregate initial Stated
Principal Balance of the Pooled Mortgage Loans for purposes of Regulation AB,
and, accordingly, Instruction J(2)(B) of Form 10-K provides for the inclusion of
updated net operating income of such "significant obligor" as required by Item
1112(b)(1) of Regulation AB on each Form 10-K to be filed by the Trust with
respect to a Distribution Date immediately following the date in which each
financial statement of such "significant obligor" is required to be delivered to
the lender under the related Mortgage Loan Documents. If the related Pooled
Mortgage Loan is a Serviced Mortgage Loan and either it constitutes a Specially
Serviced Mortgage Loan or the related Mortgaged Property constitutes an REO
Property, the applicable Special Servicer shall forward any financial statement
that it receives or causes to be prepared under Section 3.12(b) to the
applicable Master Servicer promptly after the applicable Special Servicer's
receipt or preparation thereof. Whether or not the related Pooled Mortgage Loan
is a Serviced Mortgage Loan, promptly following receipt of an updated financial
statement of such "significant obligor" (whether from the related Borrower, the
Non-Trust Master Servicer under the Non-Trust Servicing Agreement or the Special
Servicer under this Agreement), the applicable Master Servicer shall update the
following columns of the CMSA Loan Periodic Update File for the applicable
Distribution Date: columns BB, BP, BT and BU (corresponding to fields
54--"Preceding Fiscal Year NOI", 68--"Most Recent NOI", 72--"Most Recent
Financial As of Start Date" and 73--"Most Recent Financial As of End Date"), as
such column references and field numbers may change from time to time. If the
related Pooled Mortgage Loan is a Serviced Mortgage Loan and the applicable
Master Servicer does not receive a financial statement of such "significant
obligor" within ten Business Days after the date such financial statement is
required or would have been required to be delivered under the related Mortgage
Loan Documents (which, for the avoidance of doubt, is the date set forth
opposite such Pooled Mortgage Loan on Schedule XII), (i) such Master Servicer
shall notify the Depositor (and either (x) if such Pooled Mortgage Loan is a
Serviced Mortgage Loan that is a Specially Serviced Mortgage Loan, the
applicable Special Servicer hereunder, or (y) in the case of a Non-Trust
Serviced Pooled Mortgage Loan, the applicable Non-Trust Master Servicer under
the Non-Trust Servicing Agreement) that it has not received such financial
statement and (ii) such Master Servicer shall use efforts consistent with the
Servicing Standard (taking into account, in addition, the ongoing reporting
obligations of the Depositor under the Exchange Act) to continue to attempt to
obtain such financial statement from the related Borrower (if such Pooled
Mortgage Loan is a Serviced Mortgage Loan that is not a Specially Serviced
Mortgage Loan), the Non-Trust Master Servicer (if such Pooled Mortgage Loan is a
Non-Trust-Serviced Pooled Mortgage Loan) or applicable Special Servicer (if such
Pooled Mortgage loan is a Serviced Mortgage Loan that is a Specially Serviced
Mortgage Loan). In such circumstances, the applicable Master Servicer shall
retain written evidence of each instance in which it attempts to contact the
related Borrower to obtain the required financial statement and is unsuccessful
and, within five Business Days prior to the date in which a Form 10-K is
required to be filed by the Trust, shall forward an Officer's Certificate with
respect to such attempts to the Certificate Administrator and the Depositor.
Such Officer's Certificate shall be delivered to the Certificate Administrator
at Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: SEC Reporting Group, or transmitted via electronic mail to
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx (or such other address or electronic mail
address as the Certificate Administrator may specify upon not less than ten (10)
Business Days advance notice), and transmitted via electronic mail to the
Depositor at the electronic mail address therefor set forth above in this
Section 11.07.
If the Certificate Administrator has not received updates to the
relevant columns of the CMSA Loan Periodic Update File as described above for
any applicable Distribution Date, it shall include the following statement with
respect to Item 1112(b)(1) on the related Form 10-K: "The information required
for this Item 1112(b)(1) rests with a person or entity which is not affiliated
with the registrant. Oral and written requests have been made on behalf of the
registrant, to the extent required under the related pooling and servicing
agreement, to obtain the information required for this Item 1112(b)(1), and the
registrant has been unable to obtain such information to include on this Form
10-K by the related filing deadline. The information is therefore being omitted
herefrom in reliance on Rule 12b-21 under the Securities Exchange Act of 1934,
as amended" or such other statement as is directed by the Depositor.
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SECTION 11.08.Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit M-1 attached hereto, required
to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each Reporting
Servicer shall (and each Reporting Servicer shall (a) use reasonable efforts to
cause each Servicing Function Participant (other than any party or signatory to
this Agreement or Nationwide as the primary servicer under the Nationwide
Primary Servicing Agreement) with which it has entered into a servicing
relationship on or prior to the Closing Date with respect to the Mortgage Loans
and (b) cause each Servicing Function Participant (other than any party or
signatory to this Agreement or Nationwide as the primary servicer under the
Nationwide Primary Servicing Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to), provide to the Person who signs the Xxxxxxxx-Xxxxx Certification
(the "Certifying Person"), by noon (New York City time) on March 15th of each
year (with no grace period) subsequent to the fiscal year in which the Trust is
subject to the reporting requirements of the Exchange Act and otherwise within a
reasonable period of time only upon request in connection with an amendment of a
previously-filed Form 10-K, a certification (each, a "Performance
Certification"), in the form attached hereto as Exhibit M-2, upon which the
Certifying Person, the entity for which the Certifying Person acts as an
officer, and such entity's officers, directors and Affiliates (collectively with
the Certifying Person, "Certification Parties") can reasonably rely. The senior
officer in charge of securitization of the Depositor shall serve as the
Certifying Person on behalf of the Trust. Such officer of the Certifying Person
can be contacted at Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx
(with a copy to Xxxxxx X. Cedar, Senior Managing Director, Legal Department). If
any Reporting Servicer is terminated or resigns pursuant to the terms of this
Agreement, or any applicable sub-servicing agreement or primary servicing
agreement, as the case may be, such Reporting Servicer shall provide a
Performance Certification and a reliance certificate to the Certifying Person
pursuant to this Section 11.08 with respect to the period of time it was subject
to this Agreement or the applicable sub-servicing or primary servicing
agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 11.11, (ii) annual report on
assessment of compliance with Servicing Criteria provided pursuant to Section
11.12 and (iii) registered public accounting firm attestation report provided
pursuant to Section 11.13 and shall include a certification that each such
annual report on assessment of compliance discloses any material instances of
noncompliance described to the registered public accountants of such Reporting
Servicer to enable such accountants to render the attestation provided for in
Section 11.13.
If any Serviced Non-Pooled Pari Passu Companion Loan is deposited
into a commercial mortgage securitization and the applicable Reporting Servicer
is provided with not less than ten Business Days' advance written notice thereof
and contact information therefor, such Reporting Servicer shall provide to the
Person who signs the Xxxxxxxx-Xxxxx Certification with respect to an Other
Securitization a Performance Certification (which shall address the matters
contained in the Performance Certification, but solely with respect to the
related Serviced Non-Pooled Pari Passu Companion Loan), upon which such
certifying person, the entity for which the certifying person acts as an
officer, and such entity's officers, directors and Affiliates can reasonably
rely. With respect to any Non-Trust-Serviced Pooled Mortgage Loan serviced under
a Non-Trust-Serviced Pooled Mortgage Loan Pooling and Servicing Agreement, the
Master Servicer will use reasonable efforts to obtain, and upon receipt deliver
to the Depositor, a Xxxxxxxx-Xxxxx back-up certification from the Non-Trust
Master Servicer, the Non-Trust Special Servicer, the trustee under the
applicable Non-Trust Servicing Agreement and the paying agent or certificate
administrator under such Non-Trust Servicing Agreement in form and substance
similar to a Performance Certification or such other form as is provided in the
applicable Non-Trust Servicing Agreement.
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SECTION 11.09.Form 8-K Filings.
Within four (4) Business Days after the occurrence of an event
requiring disclosure (the "Form 8-K Filing Deadline") under Form 8-K (each a
"Form 8-K Reportable Event"), the Certificate Administrator shall prepare and
file on behalf of the Trust any Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Form 8-K Reportable Event or that is otherwise required to be included on Form
8-K ("Form 8-K Disclosure Information") shall, pursuant to the paragraph
immediately below, be reported by any party set forth on Schedule XI to which
such Form 8-K Reportable Event relates and such Form 8-K Disclosure Information
shall be directed to the Depositor and the Certificate Administrator for
approval by the Depositor. The Certificate Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information (other than such Form 8-K Disclosure Information which is
to be reported by it as set forth on Schedule XI) absent such reporting,
direction and approval.
As set forth on Schedule XI hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than noon (New York
City time) on the 2nd Business Day after the occurrence of a Form 8-K Reportable
Event the applicable Person identified on such Schedule XI shall be required to
provide written notice to the Depositor (and with respect to any Serviced
Non-Pooled Pari Passu Companion Loan that is deposited into an Other
Securitization, the depositor and the trustee in such Other Securitization) and
the Certificate Administrator of, to the extent known by such Person, the form
and substance of the corresponding Form 8-K Disclosure Information, as set forth
on Schedule XI, if applicable, and in form readily convertible to an
XXXXX-compatible form, or in such other form as otherwise agreed by the
Depositor, the Certificate Administrator and such other person. A report thereof
shall not be required from a Person if the contents of such report would be
empty. Unless otherwise directed by the Depositor, and subject to any comments
received to such disclosure from the Depositor by noon on the 3rd Business Day
after such Form 8-K Reportable Event, the Certificate Administrator shall
include the form and substance of the Form 8-K Disclosure Information on the
related Form 8-K. The Depositor will be responsible for any reasonable fees and
expenses incurred by the Certificate Administrator in connection with including
any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. Any
notice delivered to the Certificate Administrator pursuant to this paragraph
shall be in the form attached hereto as Exhibit Q and delivered by facsimile to
(000) 000-0000 and by email to xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx, or such
other address as may hereafter be furnished by the Certificate Administrator to
the other parties in writing.
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No later than noon (New York City time) on the 3rd Business Day
after the Form 8-K Reportable Event, the Certificate Administrator shall prepare
and deliver electronically to the Depositor a Form 8-K. No later than noon (New
York City time) on the 4th Business Day after the Form 8-K Reportable Event, the
Depositor (or, with respect to any Serviced Non-Pooled Pari Passu Companion Loan
that is deposited into an Other Securitization, the depositor in such Other
Securitization) shall sign the Form 8-K. If so directed by the Depositor, the
Certificate Administrator shall file such Form 8-K, not later than 5:00 pm (New
York City time) on the 4th Business Day after the related Form 8-K Reportable
Event. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K
needs to be amended, the Certificate Administrator will follow the procedures
set forth in Section 11.10(b). After filing with the Commission, the Certificate
Administrator will, pursuant to Section 4.02, make available on its internet
website a final executed copy of each Form 8-K prepared and filed by the
Certificate Administrator. The parties to this Agreement acknowledge (and each
Additional Servicer and each Servicing Function Participant shall be required to
acknowledge) that the performance by the Certificate Administrator of its duties
under this Section 11.09 related to the timely preparation and filing of Form
8-K is contingent upon such parties (and, to the extent applicable, any
Additional Servicer or Servicing Function Participant) observing all applicable
deadlines in the performance of their duties under this Section 11.09. The
Certificate Administrator shall have no liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare and/or
timely file such Form 8-K, where such failure results from the Certificate
Administrator's inability or failure to receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 8-K, not resulting from its own negligence, bad faith or
willful misconduct, provided, however, that the Certificate Administrator shall
use reasonable efforts to properly prepare, arrange for execution and file such
Form 8-K where such information from such other party is not received on a
timely basis or not provided by such other party.
Notwithstanding the second preceding paragraph, each Master
Servicer, each Special Servicer, each Primary Servicer, the Certificate
Administrator, the Trustee, each Sub-Servicer and each Servicing Function
Participant, shall promptly notify (and each Master Servicer, each Special
Servicer, each Primary Servicer, the Certificate Administrator, the Trustee each
Sub-Servicer and each Servicing Function Participant shall (a) use reasonable
efforts to cause each Sub-Servicer and each Servicing Function Participant
(other than any party or signatory to this Agreement or Nationwide as the
primary servicer under the Nationwide Primary Servicing Agreement) with which it
has entered into a servicing relationship on or prior to the Closing Date with
respect to the Mortgage Loans and (b) cause each Sub-Servicer and each Servicing
Function Participant (other than any party or signatory to this Agreement or
Nationwide as the primary servicer under the Nationwide Primary Servicing
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to promptly notify) the
Depositor and the Certificate Administrator, but in no event later than noon on
the 2nd Business Day after its occurrence, of any Form 8-K Reportable Event
relating to itself of which it has knowledge.
SECTION 11.10.Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports.
(a) On or before January 30 of the first year in which the
Certificate Administrator is able to do so under applicable law, the Certificate
Administrator shall prepare and file a Form 15 Suspension Notification relating
to the automatic suspension of reporting in respect of the Trust under the
Exchange Act. After the filing of Form 15, the obligations of the parties to
this Agreement under Sections 11.03, 11.05, 11.07, 11.08 and 11.09 (and the
obligations of the applicable Primary Servicer under clauses (i), (ii) and (iii)
of Section 5.13(c) of the applicable Primary Servicing Agreement) shall be
suspended for so long as the Trust is not subject to the reporting requirements
of the Exchange Act. If such Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange Act
cannot be filed on or before January 30 of the first year in which the
Certificate Administrator would have otherwise been able to do so, notice that
such Form 15 Suspension Notification has not been filed shall be available to
the Reporting Servicers and to the Pooled Mortgage Loan Sellers upon request to
the Certificate Administrator beginning on January 30 of that year.
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(b) The Certificate Administrator shall promptly notify the
Depositor (which notice may be sent by facsimile or by email and which shall
include the identity of those Reporting Servicers who did not deliver such
information) and each Reporting Servicer that failed to deliver such information
required to be delivered by it under this Agreement, if all, or any portion of,
any required disclosure information to be included in any Form 8-K, Form 10-D or
Form 10-K required to be filed pursuant to this Agreement is not delivered to it
within the delivery deadlines set forth in this Agreement. If the Certificate
Administrator is unable to timely file with the Commission all or any required
portion of any Form 8-K, Form 10-D or Form 10-K required to be filed by this
Agreement because required disclosure information either was not delivered to it
or was delivered to it after the delivery deadlines set forth in this Agreement
or for any other reason, the Certificate Administrator shall promptly notify the
Depositor (which may be sent by facsimile or by email, and which notice shall
include the identity of those Reporting Servicers who either did not deliver
such information or delivered such information to it after the delivery
deadlines set forth in this Agreement) and each Reporting Servicer that failed
to make such delivery. In the case of Form 10-D and Form 10-K, each such
Reporting Servicer shall cooperate with the Depositor and the Certificate
Administrator to prepare and file a Form 12b-25 and a Form 10-D/A and Form
10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case
of Form 8-K, the Certificate Administrator shall, upon receipt of all required
Form 8-K Disclosure Information and upon the approval and direction of the
Depositor, include such disclosure information on the Form 10-D that is required
to be filed on behalf of the Trust. In the event that any previously filed Form
8-K, Form 10-D or Form 10-K needs to be amended, the Certificate Administrator
shall notify the Depositor and such other parties as may be required and such
parties shall cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form
10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form
10-K shall be signed by a senior officer of the Depositor in charge of
securitization. The parties to this Agreement acknowledge (and each Additional
Servicer and each Servicing Function Participant shall be required to
acknowledge) that the performance by the Certificate Administrator of its duties
under this Section 11.10 related to the timely preparation and filing of Form
15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is
contingent upon such parties (and, to the extent applicable, any Additional
Servicer or Servicing Function Participant) performing their duties under this
Section. The Certificate Administrator shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file any such Form 15, Form 12b-25 or any amendments to
Forms 8-K, Form 10-D or Form 10-K, where such failure results from the
Certificate Administrator's inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D
or 10-K, not resulting from its own negligence, bad faith or willful misconduct.
SECTION 11.11.Annual Compliance Statements.
Each Master Servicer, each Special Servicer, each Primary Servicer
and the Certificate Administrator and each Sub-Servicer (each a "Certifying
Servicer") shall (and each Master Servicer, each Special Servicer, each Primary
Servicer and the Certificate Administrator shall (a) use reasonable efforts to
cause each Additional Servicer and each Sub-Servicer with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer
with which it has entered into a servicing relationship after the Closing Date
with respect to the Mortgage Loans, to) deliver to the Depositor, the
Certificate Administrator and the Trustee on or before March 7, with respect to
any Additional Servicer and each Sub-Servicer (excluding the Primary Servicers),
or March 15 or if such day is not a Business Day, the immediately preceding
Business Day (with no cure period), with respect to the Master Servicers, the
Special Servicers, the Primary Servicers or the Certificate Administrator, of
each year, commencing in March 2008, an Officer's Certificate stating, as to the
signer thereof, that (A) a review of such Certifying Servicer's (or such
Additional Servicer's or Sub-Servicer's) activities during the preceding
calendar year or portion thereof and of such Certifying Servicer's (or such
Additional Servicer's or Sub-Servicer's) performance under this Agreement, or
the applicable sub-servicing agreement or primary servicing agreement in the
case of an Additional Servicer or a Sub-Servicer, has been made under the
supervision of such officer or such Certifying Servicer or such Additional
Servicer or Sub-Servicer, as the case may be, and (B) to the best of such
officer's knowledge, based on such review, such Certifying Servicer has
fulfilled all its obligations under this Agreement, or such Additional Servicer
has fulfilled all its obligations under the applicable sub-servicing agreement
or primary servicing agreement, in all material respects throughout such year or
portion thereof, or, if there has been a failure to fulfill any such
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obligation in any material respect, specifying each such failure known to such
officer and the nature and status thereof. Each Certifying Servicer shall (and
each Master Servicer, each Special Servicer, each Primary Servicer and the
Certificate Administrator shall (a) use reasonable efforts to cause each
Additional Servicer and each Sub-Servicer with which it has entered into a
servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer with
which it has entered into a servicing relationship after the Closing Date with
respect to the Mortgage Loans, to) forward a copy of each such statement to the
Rating Agencies and the Controlling Class Representative. Promptly after receipt
of each such Officer's Certificate, the Depositor shall have the right to review
such Officer's Certificate and, if applicable, consult with each Certifying
Servicer or Additional Servicer, as applicable, as to the nature of any failures
by such Certifying Servicer or Additional Servicer, in the fulfillment of any of
the Certifying Servicer's or Additional Servicer's obligations hereunder or
under the applicable sub-servicing or primary servicing agreement. Commencing in
2009, none of the Certifying Servicers or any Additional Servicer or any
Sub-Servicer shall be required to deliver, or to endeavor to cause the delivery
of, any such Officer's Certificate until May 1, in the case of a Certifying
Servicer, or April 1, in the case of any Additional Servicer (excluding the
Primary Servicers) or any Sub-Servicers (excluding the Primary Servicers),
unless notice has been made available to such parties on the Certificate
Administrator's internet website located at xxx.xxxxxxx.xxx that a Form 15
Suspension Notification with respect to the Trust has not been filed pursuant to
Section 11.10.
If any Serviced Non-Pooled Pari Passu Companion Loan is deposited
into an Other Securitization, the applicable Certifying Servicer shall provide,
if requested in writing not less than ten Business Days in advance by a party to
the Other Pooling and Servicing Agreement, an Officer's Certificate as described
in this Section. With respect to any Non-Trust-Serviced Pooled Mortgage Loan
serviced under a Non-Trust Servicing Agreement, the applicable Master Servicer
will use reasonable efforts to obtain, and upon receipt deliver to the
Depositor, from the Non-Trust Master Servicer, the Non-Trust Special Servicer,
the trustee under the applicable Non-Trust Servicing Agreement and the paying
agent or certificate administrator under such Non-Trust Servicing Agreement an
Officer's Certificate in form and substance similar to the Officer's Certificate
described in this Section or such other form as is set forth in the applicable
Non-Trust Servicing Agreement.
SECTION 11.12.Annual Reports on Assessment of Compliance with
Servicing Criteria.
Subject to Section 11.13A, by March 15 or if such day is not a
Business Day, the immediately preceding Business Day (with no cure period), with
respect to the Master Servicers, the Special Servicers, the Primary Servicers,
the Certificate Administrator and the Trustee, of each year, commencing in March
2008, each Master Servicer, each Special Servicer (regardless of whether such
Special Servicer has commenced special servicing of any Mortgage Loan), the
Certificate Administrator, each Primary Servicer and the Trustee, each at its
own expense, shall furnish (and each of the preceding parties, as applicable,
shall (a) use reasonable efforts to cause, by March 7th, each Servicing Function
Participant (other than a party to this Agreement or to a Primary Servicing
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause, by March
7th, each Servicing Function Participant (other than a party to this Agreement
or to a Primary Servicing Agreement) with which it has entered into a servicing
relationship after the Closing Date with respect to the Mortgage Loans, to
furnish, each at its own expense), to the Trustee, the Certificate Administrator
and the Depositor, with a copy to the Rating Agencies and the Controlling Class
Representative, a report on an assessment of compliance with the Relevant
Servicing Criteria with respect to commercial mortgage backed securities
transactions taken as a whole involving such party that contains (A) a statement
by such Reporting Servicer of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such Reporting Servicer
used the Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such Reporting Servicer's assessment of compliance with the
Relevant Servicing Criteria as of and for the period ending the end of the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
11.07, including, if there has been any material instance of noncompliance with
the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria as of and for such
period as provided in Section 11.13.
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No later than the end of each fiscal year for the Trust for which a
10-K is required to be filed, each Master Servicer, each Special Servicer, each
Primary Servicer and the Trustee shall each forward to the Certificate
Administrator and the Depositor the name and address of each Servicing Function
Participant engaged by it and what Relevant Servicing Criteria will be addressed
in the report on assessment of compliance prepared by such Servicing Function
Participant. When the Master Servicers, the Special Servicers, the Primary
Servicers, the Trustee and the Sub-Servicers submit their respective assessments
by March 7th or March 15th, as applicable, to the Certificate Administrator,
each such party shall also at such time include, in its submission to the
Certificate Administrator, the assessment (and attestation pursuant to Section
11.13) of each Servicing Function Participant engaged by it, to the extent
received.
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with each Master Servicer, each Special Servicer,
each Primary Servicer, the Certificate Administrator, the Trustee and any
Servicing Function Participant as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by such Master Servicer, such
Special Servicer, the Certificate Administrator, the Trustee or any Servicing
Function Participant, respectively, and (ii) the Certificate Administrator shall
confirm that the assessments taken individually address the Relevant Servicing
Criteria for each party as set forth on Schedule VIII and notify the Depositor
of any exceptions. None of the Master Servicers, the Special Servicers, the
Primary Servicers, the Trustee or any Servicing Function Participant shall be
required to deliver, or to endeavor to cause the delivery of, any such reports
until May 1 in the case of the Master Servicers, the Special Servicers, the
Primary Servicers or the Trustee, or April 1 in the case of any Servicing
Function Participant, in any given year so long as it has received written
confirmation from the Depositor that a Form 10-K is not required to be filed in
respect of the Trust for the preceding calendar year. The parties hereto
acknowledge that a material instance of noncompliance with the Relevant
Servicing Criteria reported on an assessment of compliance pursuant to this
Section 11.12 by a Master Servicer, a Special Servicer, a Primary Servicer, the
Certificate Administrator or the Trustee shall not, as a result of being so
reported, in and of itself, constitute a breach of such parties' obligations, as
applicable, under this Agreement unless otherwise provided for in this
Agreement.
If any Serviced Non-Pooled Pari Passu Companion Loan is deposited
into an Other Securitization, each of the applicable Master Servicer, the
applicable Special Servicer (regardless of whether such Special Servicer has
commenced special servicing of any Mortgage Loan), the Certificate Administrator
and the Trustee, each at its own expense, shall furnish (and each of the
preceding parties, as applicable, shall (a) use reasonable efforts to cause each
Servicing Function Participant (other than a party to this Agreement or to a
Primary Servicing Agreement) with which it has entered into a servicing
relationship on or prior to the Closing Date with respect to the Mortgage Loans
and (b) cause each Servicing Function Participant (other than a party to this
Agreement or to a Primary Servicing Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to furnish, each at its own expense), if requested in writing not less
than ten Business Days in advance by a party to the Other Pooling and Servicing
Agreement, an annual report on assessment of compliance as described in this
Section and an attestation as described in Section 11.13.
With respect to any Non-Trust-Serviced Pooled Mortgage Loan serviced
under a Non-Trust Servicing Agreement, the applicable Master Servicer will use
reasonable efforts to obtain, and upon receipt deliver to the Depositor and the
Certificate Administrator, an annual report on assessment of compliance as
described in this Section and an attestation as described in Section 11.13 from
the Non-Trust Master Servicer, the Non-Trust Special Servicer, the trustee under
the applicable Non-Trust Servicing Agreement and the paying agent or certificate
administrator under such Non-Trust Servicing Agreement and in form and substance
similar to the annual report on assessment of compliance described in this
Section and the attestation described in Section 11.13.
SECTION 11.13.Annual Independent Public Accountants' Servicing
Report.
Subject to Section 11.13A, by March 15 or if such day is not a
Business Day, the immediately preceding Business Day (with no cure period), in
respect of the Master Servicers, the Special Servicers, the Primary Servicers,
the Certificate Administrator and the Trustee, of each year, commencing in March
2008, the Master Servicers, the Special
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Servicers, the Primary Servicers, the Certificate Administrator and the Trustee,
each at its own expense, shall cause (and each of the preceding parties, as
applicable, shall (a) use reasonable efforts to cause, by March 15th, each
Servicing Function Participant (other than a party to this Agreement or to a
Primary Servicing Agreement) with which it has entered into a servicing
relationship on or prior to the Closing Date with respect to the Mortgage Loans
and (b) cause, by March 15th, each Servicing Function Participant (other than a
party to this Agreement or to a Primary Servicing Agreement) with which it has
entered into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to cause, each at its own expense) a registered public
accounting firm (which may also render other services to such Master Servicer,
such Special Servicer, the Certificate Administrator, the Trustee, such
Sub-Servicer or such other Servicing Function Participant, as the case may be)
that is a member of the American Institute of Certified Public Accountants to
furnish a report to the Trustee, the Certificate Administrator and the
Depositor, with a copy to the Rating Agencies and the Controlling Class
Representative, to the effect that (i) it has obtained a representation
regarding certain matters from the management of such Reporting Servicer, which
includes an assessment from such Reporting Servicer of its compliance with the
Relevant Servicing Criteria, and (ii) on the basis of an examination conducted
by such firm in accordance with standards for attestation engagements issued or
adopted by the PCAOB, it is expressing an opinion as to whether such Reporting
Servicer's compliance with the Relevant Servicing Criteria was fairly stated in
all material respects, or it cannot express an overall opinion regarding such
Reporting Servicer's assessment of compliance with the Relevant Servicing
Criteria. If an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Such report must be available for general use and not contain
restricted use language.
Promptly after receipt of such report from a Master Servicer, a
Special Servicer, a Primary Servicer, the Certificate Administrator or the
Trustee (or any Sub-Servicer or Servicing Function Participant with which the
applicable Master Servicer, the applicable Special Servicer, the applicable
Primary Servicer, the Certificate Administrator or the Trustee has entered into
a servicing relationship with respect to the Mortgage Loans (other than a party
to this Agreement or to a Primary Servicing Agreement)), (i) the Depositor shall
have the right to review the report and, if applicable, consult with the
applicable Master Servicer, the applicable Special Servicer, the applicable
Primary Servicer, the Certificate Administrator, the Trustee, any Sub-Servicer
or any such Servicing Function Participant as to the nature of any material
instance of noncompliance by such Master Servicer, such Special Servicer, such
Primary Servicer, the Certificate Administrator, the Trustee or any such
Servicing Function Participant with the Servicing Criteria applicable to such
Person, and (ii) the Certificate Administrator shall confirm that each
assessment submitted pursuant to Section 11.12 is coupled with an attestation
meeting the requirements of this Section and notify the Depositor of any
exceptions. None of the Master Servicers, the Special Servicers, the Certificate
Administrator, the Primary Servicers, the Trustee or any Servicing Function
Participant shall be required to deliver, or to endeavor to cause the delivery
of, such reports until May 1 in the case of the Master Servicers, the Special
Servicers, the Certificate Administrator, the Primary Servicers or the Trustee,
or April 1 in the case of any Servicing Function Participant, in any given year
so long as it has received written confirmation from the Depositor that a Form
10-K is not required to be filed in respect of the Trust for the preceding
fiscal year.
The parties hereto acknowledge that if a material instance of
noncompliance with the Relevant Servicing Criteria is reported on an assessment
of compliance delivered pursuant to this Section 11.13 by a Master Servicer, a
Primary Servicer, a Special Servicer, the Certificate Administrator or the
Trustee, then, such reporting of such noncompliance shall not, in and of itself,
constitute a breach of such party's obligations, as applicable, under this
Agreement unless otherwise provided for in this Agreement.
SECTION 11.13A.USAP Alternative.
Notwithstanding any contrary provision of Section 11.12 and Section
11.13, with respect to each year in respect of which both (a) the Trust is not
required to file reports with the Commission under the Exchange Act and (b) if
such Person is the applicable Master Servicer, the applicable Primary Servicer
or the applicable Special Servicer for any Serviced Non-Pooled Pari Passu
Companion Loan held by a trust fund formed in connection with an Other
Securitization, such trust fund is not required to file reports with the
Commission under the Exchange Act, each Master Servicer, each
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Primary Servicer (but only with the consent of the applicable Master Servicer)
and each Special Servicer will be entitled at its option, at its expense, in
lieu of delivering or causing to be delivered a report on an assessment of
compliance with the Relevant Servicing Criteria otherwise required to be
delivered by such Person under Section 11.12 and a related attestation report of
a registered public accounting firm otherwise required to be delivered by such
Person under Section 11.13, to cause a firm of independent public accountants
that is a member of the American Institute of Certified Public Accountants to
render and to deliver (which delivery shall be made not later than the date when
such report on an assessment of compliance and such attestation report would
have been required to be delivered) a statement to the Trustee, the Certificate
Administrator, the Depositor, the Underwriters, the Controlling Class
Representative and (only if such delivery is being made with respect to the
applicable Master Servicer or Primary Servicer for the related Serviced Mortgage
Loan Group) the respective Serviced Non-Pooled Mortgage Loan Noteholder(s), to
the effect that such firm has examined the servicing operations of such Master
Servicer or Primary Servicer, as the case may be, for the previous calendar year
and that, on the basis of such examination, conducted substantially in
compliance with USAP, such firm confirms that such Master Servicer or the
Primary Servicer, as the case may be, has complied during such previous calendar
year with the minimum servicing standards (to the extent applicable to
commercial and multifamily mortgage loans) identified in USAP in all material
respects, except for such significant exceptions or errors in records that, in
the opinion of such firm, USAP requires it to report. In rendering its report
such firm may rely, as to matters relating to the direct servicing of
securitized commercial and multifamily mortgage loans by sub-servicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those sub-servicers.
SECTION 11.14.Indemnification.
Each of the Master Servicers, the Special Servicers, the Primary
Servicers, the Trustee and the Certificate Administrator (each an "Indemnifying
Party") shall indemnify and hold harmless each other and each Certification
Party and its affiliates (and, if applicable to such Indemnifying Party, any
comparable party in an Other Securitization), their respective directors and
officers, and each other person who controls any such entity within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
(each a "Certification Indemnitee"), against any and all expenses, losses,
claims, damages and other liabilities, including without limitation the costs of
investigation, legal defense and any amounts paid in settlement of any claim or
litigation arising out of or based upon failure to perform its obligations under
this Article XI. Each Master Servicer, each Special Servicer, each Primary
Servicer, the Certificate Administrator and the Trustee shall (a) use reasonable
efforts to cause each Additional Servicer or other Servicing Function
Participant (other than a party to this Agreement or to a Primary Servicing
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer or other Servicing Function Participant (other than a party
to this Agreement or to a Primary Servicing Agreement) with which it has entered
into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to indemnify and hold harmless each Certification Indemnitee
(and any comparable party in an Other Securitization) from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments and other costs and expenses incurred by such
Certification Indemnitee arising out of a breach of its obligations to provide
any of the annual compliance statements or annual assessment of servicing
criteria or attestation reports pursuant to this Agreement, or the applicable
sub-servicing or primary servicing agreement, as applicable.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Indemnitee, then the applicable
Master Servicer, the applicable Special Servicer, the applicable Primary
Servicer and the Certificate Administrator, each Additional Servicer or other
Servicing Function Participant referred to in the paragraph above (the
"Performing Party") shall (and the applicable Master Servicer, the applicable
Special Servicer, the applicable Primary Servicer, the Certificate Administrator
and the Trustee shall (a) use reasonable efforts to cause each Additional
Servicer or other Servicing Function Participant with which it has entered into
a servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans (other than a party to this Agreement or to a Primary Servicing
Agreement) and (b) cause each Additional Servicer or other Servicing Function
Participant with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans (other than a party to this
Agreement or to a Primary Servicing Agreement), to) contribute to the amount
paid or payable to the Certification Indemnitee as a result
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of the losses, claims, damages or liabilities of the Certification Indemnitee in
such proportion as is appropriate to reflect the relative fault of the
Certification Indemnitee on the one hand and the Performing Party on the other
in connection with a breach of the Performing Party's obligations pursuant to
this Article XI (or breach of its representations or obligations under the
applicable sub-servicing or primary servicing agreement to provide any of the
annual compliance statements or annual servicing criteria compliance reports or
attestation reports or otherwise comply with the requirements of this Article
XI) or the Performing Party's negligence, bad faith or willful misconduct in
connection therewith. Each Master Servicer, each Special Servicer, each Primary
Servicer, the Certificate Administrator and the Trustee shall (a) use reasonable
efforts to cause each Additional Servicer or Servicing Function Participant with
which it has entered into a servicing relationship on or prior to the Closing
Date with respect to the Mortgage Loans (other than a party to this Agreement or
to a Primary Servicing Agreement) and (b) cause each Additional Servicer or
Servicing Function Participant with which it has entered into a servicing
relationship after the Closing Date with respect to the Mortgage Loans (other
than a party to this Agreement or to a Primary Servicing Agreement), to agree to
the foregoing indemnification and contribution obligations. In no event shall
any indemnification payment to which any party is entitled to under this Section
11.14 be paid from the assets of the Trust Fund. It is acknowledged that the
party identified as Prudential Mortgage Capital Company LLC ("PMCC") on the
Schedule of Designated Sub-Servicers attached hereto as Schedule III is not a
Sub-Servicer, Additional Servicer or Servicing Function Participant and PAR
shall have no obligation to cause PMCC to perform any obligations set forth in
this Article XI, shall not be imputed with any knowledge of PMCC for performance
of its duties hereunder, and shall have no obligation to indemnify any
Certification Indemnities for any action or failure to act by PMCC, so long as
PAR does not cause PMCC to perform any activities that would that would cause
PMCC to qualify as a Servicing Function Participant hereunder.
SECTION 11.15.Amendments.
This Article XI may be amended by the parties hereto pursuant to
Section 12.01 (without, in each case, any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations (other than Section 11.11, 11.12 and
11.13) or the consent of any Certificateholder, notwithstanding anything to the
contrary contained in this Agreement) for purposes of complying with Regulation
AB and/or to conform to standards developed within the commercial mortgage
backed securities market.
SECTION 00.00.Xxxxxxxx Act Report Signatures.
Each Form 8-K report and Form 10-D report shall be signed by the
Depositor, or, if so directed by the Depositor, by the Certificate Administrator
pursuant to a power of attorney provided to the Certificate Administrator by the
Depositor in accordance with procedures to be agreed upon by the Depositor and
the Certificate Administrator and meeting the requirements of Regulation S-K.
The Depositor shall provide its signature or power of attorney to the
Certificate Administrator by electronic or fax transmission (with hard copy to
follow by overnight mail) no later than the 13th calendar day following the
related Distribution Date for Form 10-D, and not later than noon on the date of
filing for Form 8-K (provided, that in each case the Certificate Administrator
shall not file the related form until the Depositor has given its approval
thereof). If a Form 8-K or Form 10-D cannot be filed on time or if a previously
filed Form 8-K or Form 10-D needs to be amended, the Certificate Administrator
will follow the procedures set forth in this Article XI. The signing party at
the Depositor can be contacted at Bear Xxxxxxx Commercial Mortgage Securities
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx
Xxxxxxx (with a copy to Xxxxxx X. Cedar, Senior Managing Director, Legal
Department, telecopy number: (000) 000-0000), and the signing party at the
Certificate Administrator, if applicable, can be contacted at Xxxxx Fargo Bank,
National Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Services (CMBS) Bear Xxxxxxx Commercial Mortgage
Securities Inc., Series 2007-PWR18.
The Certificate Administrator shall have no liability for any loss,
expense, damage or claim arising out of or with respect to its having signed any
Form 8-K or Form 10-D if the power of attorney provided to it by the Depositor
pursuant to the immediately preceding paragraph was not properly prepared, not
resulting from its own negligence, bad faith or willful misconduct.
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SECTION 11.17.Termination of the Trustee, the Certificate
Administrator and Sub-Servicers.
(a) Each of the Master Servicers, the Special Servicers, the
Primary Servicers, the Certificate Administrator and the Trustee shall
terminate, in accordance with the related sub-servicing agreement, any
Sub-Servicer with which it has entered into such sub-servicing agreement, and
such Master Servicer shall terminate the applicable Primary Servicer in
accordance with the terms of the applicable Primary Servicing Agreement, if such
Sub-Servicer or such Primary Servicer, as the case may be, is in breach of any
of its obligations under such sub-servicing agreement or the applicable Primary
Servicing Agreement, as the case may be, whose purpose is to facilitate
compliance by the Depositor of the reporting requirements of the Exchange Act or
with the provisions of Regulation AB and the related rules and regulations of
the Commission.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Depositor may immediately terminate the Certificate Administrator
if the Certificate Administrator fails to comply with any of its obligations
under this Article XI; provided that such termination shall not be effective
until a successor trustee or Certificate Administrator, as the case may be,
shall have accepted the appointment; provided further that the Certificate
Administrator may not be terminated due to its failure to properly prepare or
file on a timely basis any Form 8-K, Form 10-K or Form 10-D or any amendments to
such Forms or any Form 12b-25 where such failure results from the Certificate
Administrator's inability or failure to receive, within the exact time frames
set forth in this Agreement any information, approval, direction or signature
from any other party hereto needed to prepare, arrange for execution or file any
such Form 8-K, Form 10-K or Form 10-D or any amendments to such forms or any
Form 12b-25 not resulting from its own negligence, bad faith or willful
misconduct.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01.Amendment.
(a) This Agreement may be amended from time to time by the
mutual agreement of the parties hereto, without the consent of any of the
Certificateholders or any of the Non-Pooled Mortgage Loan Noteholders, (i) to
cure any ambiguity, (ii) to correct, modify or supplement any provision herein
which may be inconsistent with any other provision herein or to correct any
error, (iii) to make any other provisions with respect to matters or questions
arising hereunder which shall not be inconsistent with the then existing
provisions hereof, (iv) as evidenced by an Opinion of Counsel delivered to the
Trustee, the Master Servicers and the Special Servicers, to relax or eliminate
(A) any requirement hereunder imposed by the REMIC Provisions (if the REMIC
Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated) or (B) any transfer restriction imposed on the
Certificates pursuant to Section 5.02(b) or Section 5.02(c) (if applicable law
is amended or clarified such that any such restriction may be relaxed or
eliminated), (v) as evidenced by an Opinion of Counsel delivered to the Trustee,
either (X) to comply with any requirements imposed by the Code or any successor
or amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any such proposed action which, if made
effective, would apply retroactively to any REMIC Pool or any Grantor Trust Pool
at least from the effective date of such amendment, or (Y) to avoid the
occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of any
REMIC Pool or any Grantor Trust Pool, (vi) subject to Section 5.02(d)(iv), to
modify, add to or eliminate any of the provisions of Section 5.02(d)(i), (ii) or
(iii), (vii) to avoid an Adverse Rating Event with respect to any Class of Rated
Certificates; or (viii) for the purpose of causing continued sale treatment of
the transfer of the Pooled Mortgage Loans to the Trust by the Depositor and/or
the continued sale treatment of the transfer of any of the Pooled Mortgage Loans
to the Depositor by any Pooled Mortgage Loan Seller under applicable standards
of the Financial Accounting Standards Board (or any successor thereto) as in
effect from time to time; provided that (I) no such amendment may significantly
change the activities of the Trust insofar as such change would adversely affect
the status of the Trust as a "qualifying special purpose entity" under 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), as amended, without the consent of the
Holders of Certificates entitled to not less than 51% of all the Voting Rights
(without regard to Certificates held by Depositor, any of the Depositor's
Affiliates and /or agents or any Pooled Mortgage Loan Sellers or their
Affiliates); and (II) any such amendment for the specific purposes described in
clause (iii), (iv), (vii), (viii) above shall not adversely affect in any
material respect the interests of any Certificateholder or any third-party
beneficiary of this Agreement or of any provision hereof, as evidenced by the
Trustee's and Certificate Administrator's receipt of an Opinion of Counsel to
that effect (or, alternatively, in the case of a Class of Rated Certificates, a
written confirmation from each Rating Agency to the effect that such amendment
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency, or, alternatively, in the case of a
Serviced Non-Pooled Pari Passu Mortgage Loan Noteholder as a third party
beneficiary of this Agreement, a written confirmation from each applicable
Rating Agency for any related Non-Pooled Pari Passu Companion Loan Securities
then outstanding to the effect that such amendment shall not result in an
Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu
Companion Loan Securities rated by such applicable Rating Agency); (III) with
respect to any such amendment for the specific purposes described in clause
(iii) above, the Trustee and the Certificate Administrator shall receive a
written confirmation from each Rating Agency to the effect that such amendment
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and, if a Serviced Mortgage Loan Group
that includes one or more Serviced Non-Pooled Pari Passu Loans is then serviced
and administered hereunder, also shall receive a written confirmation from each
applicable Rating Agency for such Non-Pooled Pari Passu Companion Loan
Securities to the effect that such amendment shall not result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari Passu Companion
Loan Securities rated by such applicable Rating Agency; and (IV) no such
amendment may adversely affect any Serviced Non-Pooled Subordinate Noteholder
related to any Serviced Mortgage Loan Group
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then serviced and administered under this Agreement without the written consent
of such Serviced Non-Pooled Subordinate Noteholder. This Agreement may also be
amended from time to time by the mutual agreement of the parties hereto, without
the consent of any of the Certificateholders, as and to the extent provided by
Article XI.
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights allocated to
all of the Classes that are materially affected by the amendment and without the
consent of any of the Non-Pooled Mortgage Loan Noteholders, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received or
advanced on the Pooled Mortgage Loans and/or REO Properties which are required
to be distributed on any Certificate, without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i) above, without the consent of the Holders of all Certificates of such
Class, (iii) modify the provisions of this Section 12.01 or the definition of
"Servicing Standard", without the consent of the Holders of all Certificates
then outstanding, (iv) significantly change the activities of the Trust, without
the consent of the Holders of Certificates entitled to not less than 51% of all
the Voting Rights (not taking into account Certificates held by the Depositor or
any Pooled Mortgage Loan Seller or any of their respective Affiliates or
agents), (v) adversely affect in any material respect the interests of any
third-party beneficiary of this Agreement or of any provision herein, without
the consent of such third-party beneficiary, or (vi) adversely affect any
Serviced Non-Pooled Subordinate Noteholder related to any Serviced Mortgage Loan
Group then serviced and administered under this Agreement without the written
consent of such Serviced Non-Pooled Subordinate Noteholder. The Trustee shall
not agree to amend any Pooled Mortgage Loan Purchase Agreement in any manner
that would adversely affect in any material respect the interests of the Holders
of any Class of Certificates, except with the consent of the Holders of all
Certificates of such Class. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 12.01, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if registered in the name
of any other Person.
(c) Notwithstanding any contrary provision of this Agreement, none
of the Certificate Administrator, the Trustee, the Master Servicers or the
Special Servicers shall consent to any amendment to this Agreement unless it
shall first have obtained or been furnished with an Opinion of Counsel to the
effect that neither such amendment nor the exercise of any power granted to any
party hereto in accordance with such amendment will result in an Adverse REMIC
Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to any Grantor Trust Pool.
(d) Promptly after the execution and delivery of any amendment by
all parties thereto, the Certificate Administrator shall deliver a copy thereof
to each Certificateholder, each Rating Agency and each Serviced Non-Pooled
Mortgage Loan Noteholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 12.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee and the Certificate Administrator each may but
shall not be obligated to enter into any amendment pursuant to this Section
12.01 that affects its rights, duties and immunities under this Agreement or
otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
that it reasonably believes protects or is in furtherance of the rights and
interests of Certificateholders, the cost of any
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Opinion of Counsel required in connection therewith pursuant to Section 12.01(a)
or (c) shall be payable out of the Distribution Account.
(h) Notwithstanding any contrary provision of this Section, the
parties shall not enter into any amendment of this Agreement that would be
reasonably likely to have an adverse effect on a Primary Servicer's rights and
duties under the applicable Primary Servicing Agreement, unless such Primary
Servicer has consented to such amendment (such consent not to be unreasonably
withheld or delayed).
SECTION 12.02.Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Trust (payable out of the
Distribution Account), but only if (i) a Master Servicer or Special Servicer, as
applicable, determines in its reasonable good faith judgment, that such
recordation materially and beneficially affects the interests of the
Certificateholders and so informs the Trustee in writing and (ii) the
Controlling Class Representative consents.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 12.03.Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder or Non-Pooled
Mortgage Loan Noteholder shall not operate to terminate this Agreement or the
Trust, nor entitle such Certificateholder's or Non-Pooled Mortgage Loan
Noteholder's legal representatives or heirs to claim an accounting or to take
any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder or Non-Pooled Mortgage Loan Noteholder
shall have any right to vote (except as expressly provided for herein) or in any
manner otherwise control the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/or Non-Pooled Mortgage Loan Noteholders from time to time
as partners or members of an association; nor shall any Certificateholder or
Non-Pooled Mortgage Loan Noteholder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder or Non-Pooled Mortgage Loan Noteholder
shall have any right by virtue of any provision of this Agreement to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Agreement or any Mortgage Loan, unless, with respect to any suit, action
or proceeding upon or under or with respect to this Agreement, such Person
previously shall have given to the Trustee a written notice of default
hereunder, and of the continuance thereof, as hereinbefore provided, and unless
also (except in the case of a default by the Trustee) the Holders of
Certificates entitled to at least 25% of the Voting Rights (in the case of a
Certificateholder) or the related Non-Pooled Mortgage Loan Noteholder, as the
case may be, shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights
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of any other Holders of Certificates, or to obtain or seek to obtain priority
over or preference to any other such Holder (which priority or preference is not
otherwise provided for herein), or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 12.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 12.04.Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the substantive laws of the State of New York applicable to agreements made
and to be performed entirely in said State, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws. The parties hereto intend that the provisions of Section 5-1401 of the New
York General Obligations Law shall apply to this Agreement.
SECTION 12.05.Notices.
Any communications provided for or permitted hereunder shall be in
writing (including by telecopy) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to or, in the case of
telecopy notice, when received: (i) in the case of the Depositor, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx (with a copy
to Xxxxxx X. Cedar, Senior Managing Director, Legal Department, telecopy number:
(000) 000-0000); (ii) in the case of PAR as a Master Servicer, Prudential Asset
Resources Inc., 0000 Xxxx Xxxxxx, Xxxxx 0000X, Xxxxxx, Xxxxx, 00000, Attention:
Vice President - Asset Management, telecopy number: (000) 000-0000 (effective
until February 15, 2008) or Prudential Asset Resources Inc., 0000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx, 00000, Attention: Vice President - Asset Management,
telecopy number: (000) 000-0000 (effective on and after February 15, 2008);
(iii) in the case of WFB as a Master Servicer, Xxxxx Fargo Bank, National
Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Commercial Mortgage Servicing (with a copy to Xxxxxx X. Xxxxxxx,
Esq., Xxxxx Fargo Bank, National Association, 00 Xxxxxxx Xx., 00xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 94105); (iv) in the case of the General Special Servicer,
Centerline Servicing Inc., 0000 X. X'Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, Attention: Xxxxxxx Xxxxxx, telecopy number (000) 000 0000 (with a copy to
Xxxxx Xxxxxx, Centerline Servicing Inc., 0000 X. X'Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000, telecopy number (000) 000-0000); (v) in the case of each
Loan Specific Special Servicer, if any, that is appointed after the Closing
Date, such address and/or telecopy number as may be furnished by such Person to
the parties hereto in writing on the date of such appointment; (vi) in the case
of WFB as the Certificate Registrar, Certificate Administrator and Tax
Administrator, Xxxxx Fargo Bank, National Association, 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration (CMBS), Bear
Xxxxxxx Commercial Mortgage Securities Inc., 2007-PWR18, telecopy number: (410)
715-2380; (vii) in the case of the Trustee, LaSalle Bank National Association,
000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securitization and Trust Services Group, Bear Xxxxxxx Commercial Mortgage
Securities Inc., 2007-PWR18, telecopy number: (000) 000-0000; (viii) in the case
of the Rating Agencies, (A) Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial Mortgage Surveillance, telecopy number: (000) 000-0000,
(B) Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Commercial Mortgage Surveillance and (C) DBRS, Inc., 000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Commercial Mortgage
Surveillance Group, telecopy number: (000) 000-0000; (ix) in the case of
Nationwide Life Insurance Company as Primary Servicer, Nationwide Life Insurance
Company, Xxx Xxxxxxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx 00000-0000, Attention:
Xxxxxx Xxxxxxx, facsimile number: (000) 000-0000; (x) in the case of Principal
Global Investors, LLC as Primary Servicer, Principal Global Investors, LLC, 000
Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, Attention: Xxxxxx Xxxxxxx, Managing
Director, Commercial Mortgage Servicing, facsimile number: (000) 000-0000 (with
a copy to Xxxxxx X. Xxxxxxxxx, Esq., at the same address); and (xi) in the case
of any Pooled Mortgage Loan Seller, the address for notices to such Pooled
Mortgage Loan Seller under the related Pooled Mortgage Loan Purchase Agreement;
or as to each such Person such other address and/or telecopy number as may
hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register.
-306-
In addition, any and all notices and communications to the Depositor
under Article XI shall be delivered both by the means and in the manner set
forth in the prior paragraph and by the means set forth in Section 11.07.
SECTION 12.06.Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenant(s), agreement(s), provision(s) or term(s) shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 12.07.Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto, their respective successors and assigns and,
as express third party beneficiaries (with all right to enforce the obligations
hereunder intended for their benefit as if a party hereto), the Underwriters,
the Designated Sub-Servicers and the non-parties referred to in Sections 6.03,
8.05, and Section 3.22(f) and all such provisions shall inure to the benefit of
the Certificateholders. Each of the Designated Sub-Servicers shall be a
third-party beneficiary to the obligations of a successor Master Servicer under
Section 3.22; provided that the sole remedy for any claim by a Designated
Sub-Servicer as third party beneficiary pursuant to this Section 12.07 shall be
against a successor Master Servicer in its corporate or company capacity and no
such Designated Sub-Servicer shall have any rights or claims against the Trust
Fund or any party hereto (other than such successor Master Servicer) as a result
of any rights conferred on such Designated Sub-Servicer as a third-party
beneficiary under this Section 12.07. The Non-Pooled Mortgage Loan Noteholders
(other than any Non-Pooled Mortgage Loan Noteholder that is same Person as or an
Affiliate of the related Borrower) and any designees thereof acting on behalf of
or exercising the rights of such Non-Pooled Mortgage Loan Noteholders
(including, without limitation, any related Non-Trust Master Servicer and any
related Non-Trust Special Servicer) shall be third-party beneficiaries to this
Agreement with respect to their rights as specifically provided for herein.
SECTION 12.08.Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 12.09.Notices to and from the Rating Agencies and the
Depositor.
(a) The Trustee (or, with respect to items (v) and (vii) below,
the Certificate Administrator) shall promptly provide notice to each Rating
Agency and the Depositor (and, with respect to items (i), (ii) and (iii) below,
each Serviced Non-Pooled Mortgage Loan Noteholder; provided that notice with
respect to item (ii) below shall be given within one Business Day of the
Trustee's actual knowledge thereof) with respect to each of the following of
which a Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not
been cured;
(iii) the resignation, termination, merger or consolidation
of any Master Servicer or Special Servicer and the appointment of a
successor;
(iv) the appointment, resignation or removal of a Fiscal
Agent;
(v) any change in the location of the Distribution
Account, the Interest Reserve Account or the Excess Liquidation Proceeds
Account;
-307-
(vi) any repurchase or substitution of a Mortgage Loan by a
Pooled Mortgage Loan Seller as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) Each Master Servicer shall promptly provide notice to each
Rating Agency and the Depositor with respect to each of the following of which
it has actual knowledge:
(i) the resignation or removal of the Trustee and the
appointment of a successor; and
(ii) any change in the location of its Collection Account,
any Companion Note Custodial Account or any Subordinate Note Custodial
Account maintained by it, as applicable.
(c) Each of the Master Servicers and the Special Servicers shall
promptly furnish (in hard copy format or through use of a Master Servicer's
internet website), to each Rating Agency copies of the following items (in each
case, at or about the same time that it delivers or causes the delivery of such
item to the Trustee):
(i) each of its annual compliance statements and annual
compliance assessments delivered under Section 11.11 and Section 11.12;
(ii) each of the attestation reports of a public accounting
firm regarding such servicer delivered under Section 11.13 and each USAP
report of a public accounting firm delivered under Section 11.13A in lieu
of an annual compliance assessment and related attestation report
otherwise required;
(iii) each report prepared pursuant to Section 3.09(e); and
(iv) to the extent so required by a Rating Agency to
confirm any rating assigned thereby to any Class of Rated Certificates or
any class of Non-Pooled Pari Passu Companion Loan Securities such other
information in the possession of the applicable Master Servicer and/or
Special Servicer as such Rating Agency may reasonably request.
(d) The Certificate Administrator shall promptly deliver or
otherwise make available to each Rating Agency (in hard copy format or through
use of the Certificate Administrator's internet website) a copy of each
Certificateholder Report forwarded to the Holders of the Certificates (in each
case, at or about the same time that it delivers such Certificateholder Report
to such Holders). Any Restricted Servicer Reports delivered electronically as
aforesaid shall be accessible on the Certificate Administrator's internet
website on a restricted basis.
(e) The parties intend that each Rating Agency provide to the
Trustee, upon request, a listing of the then-current rating (if any) assigned by
such Rating Agency to each Class of Certificates then outstanding.
SECTION 12.10.Notices to Controlling Class Representative.
The Trustee, the Master Servicers and the Special Servicers shall
each deliver to the Controlling Class Representative a copy of each notice or
other item of information such Person is required to deliver to the Rating
Agencies pursuant to Section 12.09, in each case simultaneously with the
delivery thereof to the Rating Agencies, to the extent not already delivered to
the Controlling Class Representative pursuant to this Agreement.
-308-
SECTION 12.11.Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 12.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
-309-
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Depositor
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
PRUDENTIAL ASSET RESOURCES, INC.
a Master Servicer
By: /s/ Xxx X. Xxxxxxxx, Xx.
-------------------------------------------
Name: Xxx X. Xxxxxxxx Xx.
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
a Master Servicer
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
CENTERLINE SERVICING INC.
General Special Servicer
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: President and CEO
PSA
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Solely in its capacity as Certificate
Administrator and Tax Administrator
By: /s/ Xxxxxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxxxx Xxxxxxx-Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx-Xxxxxxx
Title: Assistant Vice President
PSA
Although not a party to this Agreement, Principal Global Investors, LLC hereby
executes this Agreement to affirm its obligations under Sections 3.01, 3.03(b),
3.03(d), 3.08, 3.11, 3.20 and 3.22 and Article XI:
PRINCIPAL GLOBAL INVESTORS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Associate General Counsel
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant General Counsel
PSA
STATE OF _______________________ )
) ss.:
COUNTY OF ______________________ )
On the ______ day of December 2007, before me, a notary public in
and for said State, personally appeared __________________, personally known to
me to be a _________________ of _________________________________________, one
of the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________________
Notary Public
[Notarial Seal
Notary Page to PSA
EXHIBIT A-1
FORM OF CLASS X-0, X-0, X-0, X-XX, X-0, A-1A, A-M, AM-A, A-J, AJ-A, B, C, D, E,
F, G, H, J, K, L, M, N, O, P, Q, S, X-1 AND X-2 CERTIFICATES
CLASS [ ] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2007-PWR18
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Pass-Through Rate: [____% Class [Principal Balance]
per annum][Variable] [Notional Amount] of the Class [ ]
Certificates as of the Closing Date:
$__________
Closing Date: December 27, 2007 Initial Certificate [Principal Balance]
[Notional Amount] of this Certificate
as of the Closing Date: $__________
First Distribution Date: Aggregate Stated Principal Balance of
January 11, 2008 the Pooled Mortgage Loans as of the
Closing Date ("Initial Pool Balance"):
$2,502,224,530
Master Servicer: Trustee:
Prudential Asset Resources, Inc. LaSalle Bank National Association
Master Servicer: Certificate Administrator and Tax
Xxxxx Fargo Bank, National Association Administrator:
Xxxxx Fargo Bank, National Association
General Special Servicer: CUSIP No.:
Centerline Servicing Inc. ISIN No.: ________________
Certificate No. [ ] -___
A-1-1
[FOR BOOK-ENTRY CERTIFICATES][UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE ADMINISTRATOR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[FOR PRIVATE CERTIFICATES][THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED
STATES, ITS TERRITORIES AND POSSESSIONS. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION
OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE OF
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES MUST
COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., LASALLE BANK NATIONAL ASSOCIATION,
PRUDENTIAL ASSET RESOURCES, INC., XXXXX FARGO BANK, NATIONAL ASSOCIATION,
CENTERLINE SERVICING INC., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
A-1-2
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES ONE OR
MORE "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[FOR SUBORDINATE CERTIFICATES][THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE
CLASSES OF CERTIFICATES OF THE SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
[FOR PRINCIPAL BALANCE CERTIFICATES][THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.]
[FOR CLASS X-1 AND CLASS X-2 CERTIFICATES][THE OUTSTANDING CERTIFICATE NOTIONAL
AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE. THIS
CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE
THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.]
[FOR REGULATION S GLOBAL CERTIFICATES][PRIOR TO THE DATE THAT IS 40 DAYS AFTER
THE LATER OF (A) THE CLOSING DATE AND (B) THE COMMENCEMENT OF THE INITIAL
OFFERING OF THE CERTIFICATES IN RELIANCE ON REGULATION S, THIS CERTIFICATE MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR
TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED. NO BENEFICIAL OWNERS OF
THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST
HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE
TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that [FOR BOOK-ENTRY CERTIFICATES: CEDE & CO.][FOR
DEFINITIVE CERTIFICATES: [ ]] is the registered owner of the Percentage '
Interest evidenced by this Certificate (obtained by dividing the [principal
balance][notional amount] of this Certificate (its "Certificate [Principal
Balance][Notional Amount]") as of the Closing Date by the aggregate [principal
balance][notional amount] of all the Class [ ] Certificates (their "Class
[Principal Balance][Notional Amount]") as of the Closing Date) in that certain
beneficial ownership interest in the Trust Fund evidenced by all the Class [ ]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of December 1, 2007 (the
"Agreement"), among Bear Xxxxxxx Commercial Mortgage
A-1-3
Securities Inc., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), Prudential Asset Resources, Inc., as a
master servicer (in such capacity, a "Master Servicer," which term includes any
successor entity under the Agreement), Xxxxx Fargo Bank, National Association,
as a master servicer (in such capacity, a "Master Servicer," which term includes
any successor entity under the Agreement), as certificate administrator (in such
capacity, the "Certificate Administrator," which term includes any successor
entity under the Agreement) and as tax administrator (in such capacity, the "Tax
Administrator," which term includes any successor entity under the Agreement),
Centerline Servicing Inc., as general special servicer (in such capacity, the
"General Special Servicer," which term includes any successor entity under the
Agreement), and LaSalle Bank National Association, as trustee (the "Trustee,"
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein have the respective
meanings assigned thereto in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound. In the event that there is any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [ ] Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Certificate Administrator by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Certificate Administrator with wiring instructions no less
than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate [FOR PRINCIPAL BALANCE
CERTIFICATES][(determined without regard to any possible future reimbursement of
any portion of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate)] will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to the Holder hereof of
such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Account (if established), the Companion Note Custodial
Account(s), the Subordinate Note Custodial Accounts(s) and any other accounts
established
A-1-4
pursuant to the Agreement may be made from time to time for purposes other than,
and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
[FOR PRINCIPAL BALANCE CERTIFICATES][Any distribution to the Holder
of this Certificate in reduction of the Certificate Principal Balance hereof is
binding on such Holder and all future Holders of this Certificate and any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such distribution is made upon this
Certificate.]
This Certificate is issuable in fully registered form only without
interest coupons. As provided in the Agreement and subject to certain
limitations therein set forth, this Certificate is exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
[FOR PRIVATE CERTIFICATES][No transfer, sale, pledge or other
disposition of this Certificate or any interest herein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable
securities or blue sky laws of any state or other jurisdiction within the United
States, its territories and possessions, or is otherwise made in accordance with
the Securities Act and such other securities or blue sky laws. If a transfer of
this Certificate is to be made without registration under the Securities Act,
then (except in limited circumstances specified in the Agreement) the
Certificate Registrar shall refuse to register such transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (ii) an Opinion
of Counsel satisfactory to the Certificate Administrator to the effect that such
prospective Transferee is an Institutional Accredited Investor or a Qualified
Institutional Buyer and such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund, the Depositor, either Master Servicer, any Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator or the Certificate
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.]
[FOR PRIVATE CERTIFICATES][If this Certificate constitutes a Rule
144A Global Certificate and a transfer of any interest in this Certificate is to
be made without registration under the Securities Act, then (except under
limited circumstances specified in the Agreement) the Certificate Owner desiring
to effect such transfer shall be required to obtain either (i) a certificate
from such Certificate Owner's prospective Transferee substantially in the form
attached as Exhibit F-2C to the Agreement, or (ii) an Opinion of Counsel to the
effect that such prospective Transferee is a Qualified Institutional Buyer and
such transfer may be made without registration under the Securities Act. Except
as discussed below or under such other limited circumstances as are provided in
the Agreement, if this Certificate constitutes a Rule
X-0-0
000X Xxxxxx Xxxxxxxxxxx, then interests herein shall not be transferred to any
Person who takes delivery in the form of an interest in anything other than a
Rule 144A Global Certificate.]
[FOR PRIVATE CERTIFICATES][Except under such limited circumstances
as are provided in the Agreement, if this Certificate constitutes a Regulation S
Global Certificate, then beneficial interests in this Certificate shall not be
transferred to any Person other than a non-United States Securities Person who
takes delivery in the form of a beneficial interest in this Certificate. If the
transfer occurs on or prior to the Release Date, then the Certificate Owner
desiring to effect such transfer shall be required to obtain from such
Certificate Owner's prospective Transferee a written certification substantially
in the form attached as Exhibit F-2D to the Agreement. On or prior to the
Release Date, beneficial interests in any Regulation S Global Certificate may be
held only through Euroclear or Clearstream. After the Release Date, beneficial
interests in any Regulation S Global Certificate may be held through Euroclear,
Clearstream or any other direct account holder at DTC.]
[FOR PRIVATE CERTIFICATES][Notwithstanding the foregoing, any
interest in a Rule 144A Global Certificate may be transferred by any Certificate
Owner holding such interest to any Institutional Accredited Investor (other than
a Qualified Institutional Buyer) who takes delivery in the form of a Definitive
Certificate of the same Class as such Global Certificate upon delivery to the
Certificate Registrar and the Certificate Administrator of (i) such
certifications and/or opinions as are contemplated above with respect to
transfers of this Certificate in definitive form and (ii) such written orders
and instructions as are required under the applicable procedures of the
Depository, Clearstream and/or Euroclear to direct the Certificate Administrator
to debit the account of a Depository Participant by a denomination of interests
in such Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated above with respect to transfers of
this Certificate in definitive form, the Certificate Administrator, subject to
and in accordance with the applicable procedures of the Depository, shall reduce
the denomination of the subject Global Certificate, and cause a Definitive
Certificate of the same Class as such Global Certificate, and in a denomination
equal to the reduction in the denomination of such Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee.]
[FOR PRIVATE CERTIFICATES][None of the Depositor, the Initial
Purchasers, the Certificate Administrator, the Trustee, the Master Servicers,
the Special Servicers, the Tax Administrator or the Certificate Registrar is
obligated to register or qualify the Class [ ] Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of this Certificate or any interest
herein without registration or qualification. Any Certificateholder or
Certificate Owner desiring to effect a transfer of this Certificate or any
interest herein shall, and does hereby agree to, indemnify the Depositor, the
Initial Purchasers, the Certificate Administrator, the Trustee, each Master
Servicer, each Special Servicer, the Tax Administrator and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws or the provisions
described above.]
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[FOR BOOK-ENTRY CERTIFICATES][The Global Certificates shall be
deposited with the Certificate Administrator as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.]
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other retirement arrangement, including individual
retirement accounts and annuities, Xxxxx plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or Section 4975 of the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing this Certificate or any interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a non-exempt violation of Section 406 or
407 of ERISA or Section 4975 of the Code or would result in the imposition of an
excise tax under Section 4975 of the Code. [FOR PRIVATE CERTIFICATES][Except in
limited circumstances, the Certificate Registrar shall refuse to register the
transfer of this Certificate (and, if applicable, any Certificate Owner shall
refuse to transfer an interest in this Certificate), unless it has received from
the prospective Transferee (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification to the effect that the
purchase and holding of this Certificate by such prospective Transferee are
exempt from the prohibited transaction provisions of Sections 406(a) and (b) and
407 of ERISA and the excise taxes on such prohibited transactions imposed under
Section 4975 (a) and (b) of the Code, by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) if this Certificate is
investment grade rated and is being acquired by, on behalf of or with assets of
a Plan in reliance upon Prohibited Transaction Exemption 90-30 or 90-24, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Certificate Administrator, the Depositor, any Pooled Mortgage Loan Seller,
either Master Servicer, any Special Servicer, either Primary Servicer, any
Sub-Servicer, any Person responsible for the servicing of a Non-Trust-Serviced
Pooled Mortgage Loan, any Exemption-Favored Party or any Borrower with respect
to Pooled Mortgage Loans constituting more than 5% of the aggregate unamortized
principal of all the Pooled Mortgage Loans determined as of the Closing Date, or
by an Affiliate of any such Person, and (Z) agrees that it will obtain from each
of its Transferees a written certification described in clause (i) above, a
written certification described in clause (ii) above or a written representation
that such Transferee satisfies the requirements of the immediately preceding
clauses (iii)(X) and (iii)(Y), together with a written agreement that such
Transferee will obtain from each of its Transferees a similar written
certification or representation; or (iv) a certification of facts and an Opinion
of Counsel which otherwise establish to the reasonable satisfaction of the
Trustee (or, if applicable, the Certificate Owner effecting the transfer) that
such transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.]
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate
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Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any transfer or exchange of
this Certificate, but the Certificate Administrator or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
[FOR BOOK-ENTRY CERTIFICATES][Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC, and accordingly, this Certificate shall constitute a Book-Entry
Certificate.]
The Depositor, the Master Servicers, the Special Servicers, the
Trustee, the Certificate Administrator, the Tax Administrator, the Certificate
Registrar and any agent of the Depositor, the Master Servicers, the Special
Servicers, the Trustee, the Certificate Administrator, the Tax Administrator or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicers, the Special Servicers, the Trustee, the Certificate
Administrator, the Tax Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by the Certificate Administrator on behalf of the Trustee and required to be
paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Pooled Mortgage Loan or REO Property remaining in the Trust Fund; (ii) the
purchase by one or both Master Servicers, the General Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Pooled Mortgage Loans and each REO Property remaining in the Trust Fund; and
(iii) the exchange by the Sole Certificateholder(s) of all the Certificates for
all Pooled Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, either or both Master Servicers, the
General Special Servicer or any single Controlling Class Certificateholder or
group of Controlling Class Certificateholders to purchase from the Trust Fund
all the Pooled Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Certificates; however,
such right to purchase is subject to the aggregate Stated Principal Balance of
the Mortgage Pool at the time of purchase being 1.0% or less of the Initial Pool
Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the parties to the Agreement with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights
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allocated to all of the Classes materially affected by the amendment and, if
adversely affected by the amendment, any third-party beneficiary. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of any
REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of
the State of New York applicable to agreements negotiated, made and to be
performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on its behalf by the Certificate Registrar.
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [ ] Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Authenticating Agent
By:____________________________________
Authorized Representative
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
___________________ for the account of _________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to ______
_______________________) and all applicable statements and notices should be
mailed to ____________________________________________________________________.
This information is provided by ____________________________________
the Assignee named above, or ___________________________________________________
as its agent.
A-1-11
[FOR BOOK ENTRY-CERTIFICATES INSERT THIS SCHEDULE A]
SCHEDULE A
SCHEDULE OF EXCHANGES IN GLOBAL SECURITY
The following exchanges of a part of this Global Security have been made:
Signature of
Amount of authorized
Amount of Increase in Principal Amount of officer of
Decrease in Principal Principal Amount this Global Security Trustee or
Amount of this of this Global following such securities
Date of Exchange Global Security Security decrease (or increase) custodian
-----------------------------------------------------------------------------------------------------------
X-0-00
XXXXXXX X-0
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-PWR18
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Closing Date: December 27, 2007 Percentage Interest evidenced by
this Class R Certificate: ___%
First Distribution Date: Aggregate Stated Principal Balance of
January 11, 2008 the Pooled Mortgage Loans as of the
Closing Date ("Initial Pool
Balance"): $2,502,224,530
Master Servicer: Trustee:
Prudential Asset Resources, Inc. LaSalle Bank National Association
Master Servicer: Certificate Administrator and Tax
Xxxxx Fargo Bank, National Association Administrator:
Xxxxx Fargo Bank, National Association
General Special Servicer:
Centerline Servicing Inc.
Certificate No. R-___
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THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES OR BLUE SKY LAWS OF
ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS TERRITORIES AND
POSSESSIONS. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., LASALLE BANK NATIONAL ASSOCIATION,
PRUDENTIAL ASSET RESOURCES, INC., XXXXX FARGO BANK, NATIONAL ASSOCIATION,
CENTERLINE SERVICING INC., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS
DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS
CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY, ON THIS CERTIFICATE.
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This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of December 1,
2007 (the "Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.,
as depositor (the "Depositor," which term includes any successor entity under
the Agreement), Prudential Asset Resources, Inc., as a master servicer (in such
capacity, a "Master Servicer," which term includes any successor entity under
the Agreement), Xxxxx Fargo Bank, National Association, as a master servicer (in
such capacity, a "Master Servicer," which term includes any successor entity
under the Agreement), as certificate administrator (in such capacity, the
"Certificate Administrator," which term includes any successor entity under the
Agreement) and as tax administrator (in such capacity, the "Tax Administrator,"
which term includes any successor entity under the Agreement), Centerline
Servicing Inc., as general special servicer (in such capacity, the "General
Special Servicer," which term includes any successor entity under the
Agreement), and LaSalle Bank National Association, as trustee (the "Trustee,"
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein have the respective
meanings assigned thereto in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound. In the event that there is any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class R Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Certificate Administrator by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Certificate Administrator with wiring instructions no less
than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess
A-2-3
Liquidation Proceeds Account, the REO Account (if established), the Companion
Note Custodial Account(s), the Subordinate Note Custodial Accounts(s) and any
other accounts established pursuant to the Agreement may be made from time to
time for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without
interest coupons. As provided in the Agreement and subject to certain
limitations therein set forth, this Certificate is exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable securities or blue sky laws of any state
or other jurisdiction within the United States, its territories and possessions,
or is otherwise made in accordance with the Securities Act and such other
securities or blue sky laws. If a transfer of this Certificate is to be made
without registration under the Securities Act, then (except in limited
circumstances specified in the Agreement) the Certificate Registrar shall refuse
to register such transfer unless it receives (and, upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (ii) an Opinion of Counsel satisfactory to the Certificate Administrator to
the effect that such prospective Transferee is a Qualified Institutional Buyer
and such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, either Master Servicer, any Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
None of the Depositor, the Initial Purchasers, the Certificate
Administrator, the Trustee, the Master Servicers, the Special Servicers, the Tax
Administrator or the Certificate Registrar is obligated to register or qualify
the Class R Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of this Certificate or any interest herein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, the Underwriters, the Certificate Administrator,
the Trustee, each Master Servicer, each Special Servicer, the Tax Administrator
and the Certificate Registrar against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws or the provisions described in the six preceding paragraphs.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other retirement arrangement, including individual
retirement accounts and annuities, Xxxxx plans and collective investment funds
and separate accounts in which such
A-2-4
plans, accounts or arrangements are invested, including insurance company
general accounts, that is subject to ERISA or Section 4975 of the Code (each, a
"Plan"), or (B) to any Person who is directly or indirectly purchasing this
Certificate or any interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code.
Except in limited circumstances, the Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee either: (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Certificate Administrator (i) to deliver payments to
a Person other than such Person and (ii) to negotiate the terms of any mandatory
disposition, to execute all instruments of Transfer and to do all other things
necessary in connection with any such disposition. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Certificate Administrator and the Tax
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed Transferee,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of either the
Certificate Registrar or the Certificate Administrator has actual knowledge that
the proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in this Certificate to such proposed Transferee shall be
effected. In connection therewith, the Certificate Registrar shall not register
the transfer of an Ownership Interest in this Certificate to any entity
classified as a partnership under the Code unless at the time of transfer, all
of its beneficial owners are United States Securities Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest
A-2-5
herein, agrees to give the Certificate Administrator and the Tax Administrator
written notice that it is a "pass-through interest holder" within the meaning of
temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder."
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Administrator to
confirm that, it has (i) sole investment discretion with respect to each such
account and (ii) full power to make the acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
described above in this Certificate.
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Administrator and the Tax Administrator the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not result in an Adverse
Rating Event; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Administrator and the Tax Administrator, to the effect that
such modification of, addition to or elimination of such provisions will not
cause any REMIC Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of a Class R Certificate to a Person
that is not a Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the Transfer of a
Class R Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization", a "Disqualified Non-United States Tax Person" or a
"Disqualified Partnership" (each as defined in the Agreement) and other than a
foreign permanent establishment or fixed base (each within the meaning of any
applicable income tax treaty) of a United States Tax Person or any other Person
as to whom the transfer of this Certificate may cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any transfer or exchange of
this Certificate, but the Certificate Administrator or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
A-2-6
The Depositor, the Master Servicers, the Special Servicer, the
Trustee, the Certificate Administrator, the Tax Administrator, the Certificate
Registrar and any agent of the Depositor, the Master Servicers, the Special
Servicer, the Trustee, the Certificate Administrator, the Tax Administrator or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicers, the Special Servicer, the Trustee, the Certificate
Administrator, the Tax Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by the Certificate Administrator on behalf of the Trustee and required to be
paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Pooled Mortgage Loan or REO Property remaining in the Trust Fund; (ii) the
purchase by one or both Master Servicers, the General Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund; and (iii)
the exchange by the Sole Certificateholder(s) of all the Certificates for all
Pooled Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, either or both Master Servicers, the
General Special Servicer or any single Controlling Class Certificateholder or
group of Controlling Class Certificateholders to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the parties to the Agreement with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights allocated to
all of the Classes materially affected by the amendment and, if adversely
affected by the amendment, any third-party beneficiary. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
A-2-7
This Certificate shall be construed in accordance with the laws of
the State of New York applicable to agreements negotiated, made and to be
performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-2-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on its behalf by the Certificate Registrar.
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Authenticating Agent
By:____________________________________
Authorized Representative
A-2-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ______
________) and all applicable statements and notices should be mailed to _______
___________________________________________
This information is provided by ____________________________________
________________, the Assignee named above, or ________________________________,
as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS V CERTIFICATES
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-PWR18
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Closing Date: December 27, 2007 Percentage Interest evidenced by this
Class V Certificate: ______%
First Distribution Date: Aggregate Stated Principal Balance of
January 11, 2008 the Pooled Mortgage Loans as of the
Closing Date ("Initial Pool
Balance"): $2,502,224,530
Master Servicer: Trustee:
Prudential Asset Resources, Inc. LaSalle Bank National Association
Master Servicer: Certificate Administrator and Tax
Xxxxx Fargo Bank, National Association Administrator:
Xxxxx Fargo Bank, National Association
General Special Servicer:
Centerline Servicing Inc.
Certificate No. V-___
A-3-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES OR BLUE SKY LAWS OF
ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS TERRITORIES AND
POSSESSIONS. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE OF
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES MUST
COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., LASALLE BANK NATIONAL ASSOCIATION,
PRUDENTIAL ASSET RESOURCES, INC., XXXXX FARGO BANK, NATIONAL ASSOCIATION,
CENTERLINE SERVICING INC., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class V Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of December 1,
2007 (the "Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.,
as depositor (the "Depositor," which term includes any successor entity under
the
A-3-2
Agreement), Prudential Asset Resources, Inc., as a master servicer (in such
capacity, a "Master Servicer," which term includes any successor entity under
the Agreement), which term includes any successor entity under the Agreement),
Xxxxx Fargo Bank, National Association, as a master servicer (in such capacity,
a "Master Servicer," which term includes any successor entity under the
Agreement), as certificate administrator (in such capacity, the "Certificate
Administrator," which term includes any successor entity under the Agreement)
and as tax administrator (in such capacity, the "Tax Administrator," which term
includes any successor entity under the Agreement), Centerline Servicing Inc.,
as general special servicer (in such capacity, the "General Special Servicer,"
which term includes any successor entity under the Agreement), and LaSalle Bank
National Association, as trustee (the "Trustee," which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned thereto in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound. In the event that there is any conflict between any provision
of this Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class V Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Certificate Administrator by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Certificate Administrator with wiring instructions no less
than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Account (if established), the Companion Note Custodial
Account(s), the Subordinate Note Custodial Accounts(s) and any other accounts
established pursuant to the Agreement may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the
A-3-3
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without
interest coupons. As provided in the Agreement and subject to certain
limitations therein set forth, this Certificate is exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable securities or blue sky laws of any state
or other jurisdiction within the United States, its territories and possessions,
or is otherwise made in accordance with the Securities Act and such other
securities or blue sky laws. If a transfer of this Certificate is to be made
without registration under the Securities Act, then (except in limited
circumstances specified in the Agreement) the Certificate Registrar shall refuse
to register such transfer unless it receives (and, upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (ii) an Opinion of Counsel satisfactory to the Certificate Administrator to
the effect that such prospective Transferee is a Qualified Institutional Buyer
and such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, either Master Servicer, any Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
None of the Depositor, the Initial Purchasers, the Certificate
Administrator, the Trustee, the Master Servicers, the Special Servicers, the Tax
Administrator or the Certificate Registrar is obligated to register or qualify
the Class V Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of this Certificate or any interest herein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, the Underwriters, the Trustee, the Certificate
Administrator, the Tax Administrator, each Master Servicer, the Special Servicer
and the Certificate Registrar against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws or the provisions described in the six preceding paragraphs.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other retirement arrangement, including individual
retirement accounts and annuities, Xxxxx plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or Section 4975 of the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing this Certificate or any interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate
A-3-4
or such interest herein by the prospective Transferee would result in a
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or would
result in the imposition of an excise tax under Section 4975 of the Code. Except
in limited circumstances, the Certificate Registrar shall refuse to register the
transfer of this Certificate unless it has received from the prospective
Transferee either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate on behalf of, as named fiduciary of, as trustee of, or with assets
of a Plan; or (ii) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee that such
transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Administrator to
confirm that, it has (i) sole investment discretion with respect to each such
account and (ii) full power to make the acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
described above in this Certificate.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any transfer or exchange of
this Certificate, but the Certificate Administrator or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicers, the Special Servicers, the
Trustee, the Certificate Administrator, the Tax Administrator, the Certificate
Registrar and any agent of the Depositor, the Master Servicers, the Special
Servicers, the Trustee, the Certificate Administrator, the Tax Administrator or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicers, the Special Servicers, the Trustee, the Certificate
Administrator, the Tax Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by or on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Pooled Mortgage
A-3-5
Loan or REO Property remaining in the Trust Fund; (ii) the purchase by one or
both Master Servicers, the General Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders, at a
price determined as provided in the Agreement, of all the Mortgage Loans and
each REO Property remaining in the Trust Fund; and (iii) the exchange by the
Sole Certificateholder(s) of all the Certificates for all Pooled Mortgage Loans
and each REO Property remaining in the Trust Fund. The Agreement permits, but
does not require, either or both Master Servicers, the General Special Servicer
or any single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the parties to the Agreement with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights allocated to
all of the Classes materially affected by the amendment and, if adversely
affected by the amendment, any third-party beneficiary. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of
the State of New York applicable to agreements negotiated, made and to be
performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on its behalf by the Certificate Registrar.
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Certificate Registrar
By:__________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Authenticating Agent
By:__________________________________
Authorized Representative
A-3-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______ for the account of _______.
Distributions made by check (such check to be made payable to ______
_______________________________) and all applicable statements and notices
should be mailed to __________________________________________________________.
This information is provided by ____________________________________
the Assignee named above, or __________________________________________________,
as its agent.
A-3-8
EXHIBIT B
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
CERTIFICATE ADMINISTRATOR AND INITIAL DEPOSITARY
B-1
THE DEPOSITORY TRUST COMPANY
A subsidiary of The Depository Trust & Clearing Corporation
ISSUER LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Co-Issuer(s), if applicable]
Bear Xxxxxxx Commercial Mortgage Securities Trust 2007-PWR18
--------------------------------------------------------------------------------
[Name of Issuer and Co-Issuer(s), if applicable]
See Rider 1
--------------------------------------------------------------------------------
[Security Description, including series designation if applicable]
See Rider 2
--------------------------------------------------------------------------------
[CUSIP Number of the Securities]
December 27, 2007
--------------------------
[For Municipal Issues: [Date]
Underwriting Department--Eligibility; 25th Floor]
[For Corporate Issues:
General Counsel's Office; 22nd Floor]
THE DEPOSITORY TRUST COMPANY
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
This letter sets forth our understanding with respect to the Securities
represented by the CUSIP number referenced above (the "Securities"). Issuer
requests that The Depository Trust Company ("DTC") accept the Securities as
eligible for deposit at DTC. The DTC Participant, See Rider 3 (manager,
underwriter, or placement agent) will distribute the securities through DTC.
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with DTC's Rules with respect to the Securities, Issuer
represents to DTC that Issuer will comply with the requirements applicable to it
stated in DTC's Operational Arrangements (found at XXX.XXXX.XXX and
XXX.XXX.XXX), as they may be amended from time to time.
Very truly yours,
Bear Xxxxxxx Commercial Mortgage
Securities Trust 2007-PWR18
Note: By: Xxxxx Fargo Bank, National
----- Association
not in its individual capacity, but
Schedule A contains statements solely as Certificate Administrator
that DTC believes accurately ------------------------------------------
describe DTC, the method of effecting (Issuer)
book-entry transfers of securities
distributed through DTC, and certain
related matters. By: /s/ Xxxxxxxx Xxxxxxxxxx
-------------------------------------
(Authorized Officer's Signature)
Received and Accepted: Xxxxxxxx Xxxxxxxxxx
THE DEPOSITORY TRUST COMPANY ----------------------------------------
(Print Name)
By: /s/ Xxxxx Xxxxxxxx
---------------------------------- 0000 Xxx Xxxxxxxxx Xxxx
----------------------------------------
(Street Address)
Columbia MD USA 21045-1951
----------------------------------------
(City) (State) (Country) (Zip Code)
( 000 ) 000-0000
----------------------------------------
(Phone Number)
xxxxxxxx.x.xxxxxxxxxx@xxxxxxxxxx.xxx
[LOGO] DTCC(R) ----------------------------------------
The Depository Trust & (E-mail Address)
Clearing Corporation
[03/05]
SCHEDULE A
(TO ISSUER LETTER OF REPRESENTATIONS)
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
-----------------------------------
(PREPARED BY DTC--BRACKETED MATERIAL MAY BE APPLICABLE ONLY TO CERTAIN ISSUES)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue,and will be deposited with DTC. [If, however, the aggregate
principal amount of [any] issue exceeds $500 million, one certificate will be
issued with respect to each $500 million of principal amount, and an additional
certificate will be issued with respect to any remaining principal amount of
such issue.]
2. DTC, the world's largest securities depository, is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides
asset servicing for over 2.2 million issues of U.S. and non-U.S. equity issues,
corporate and municipal debt issues, and money market instruments from over 100
countries that DTC's participants ("Direct Participants") deposit with DTC. DTC
also facilitates the post-trade settlement among Direct Participants of sales
and other securities transactions in deposited securities, through electronic
computerized book-entry transfers and pledges between Direct Participants'
accounts. This eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and non-U.S. securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation ("DTCC"). DTCC, in turn, is owned by a number of Direct
Participants of DTC and Members of the National Securities Clearing Corporation,
Fixed Income Clearing Corporation, and Emerging Markets Clearing Corporation
(NSCC, FICC, and EMCC, also subsidiaries of DTCC), as well as by the New York
Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as both U.S. and non-U.S. securities brokers and
dealers, banks, trust companies, and clearing corporations that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). DTC has Standard & Poor's highest rating:
AAA. The DTC Rules applicable to its Participants are on file with the
Securities and Exchange Commission. More information about DTC can be found at
XXX.XXXX.XXX and XXX.XXX.XXX.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner")is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co., or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other DTC nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity
[03/05]
of the Direct Participants to whose accounts such Securities are credited, which
may or may not be the Beneficial Owners. The Direct and Indirect Participants
will remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment the transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the Security documents. For example, Beneficial
Owners of Securities may wish to ascertain that the nominee holding the
Securities for their benefit has agreed to obtain and transmit notices to
Beneficial Owners. In the alternative, Beneficial Owners may wish to provide
their names and addresses to the registrar and request that copies of notices be
provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or
vote with respect to Securities unless authorized by a Direct Participant in
accordance with DTC's Procedures. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent, on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividend payments to Cede & Co. (or such
other nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants will be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as depository with respect
to the Securities at any time by giving reasonable notice to Issuer or Agent.
Under such circumstances, in the event that a successor depository is not
obtained, Security certificates are required to be printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry-only
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered to DTC.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
[3/04]
RIDERS
1.
APPROXIMATE INITIAL CERTIFICATE APPROXIMATE INITIAL
CLASS BALANCE PASS-THROUGH RATE
---------------- ------------------------------- -----------------------
Class A-1 $ 74,891,059 5.038%
Class A-2 $291,900,000 5.613%
Class A-3 $269,700,000 5.957%
Class A-AB $131,900,000 5.926%
Class A-4 $709,998,000 5.700%
Class A-1A $272,415,000 5.602%
Class A-M $211,557,000 6.084%
Class AM-A $ 38,916,000 6.087%
Class A-J $182,468,000 6.413%
Class AJ-A $ 33,566,000 6.413%
2.
CLASS CUSIP NUMBER
---------------- -------------------------------
Class A-1 07401D AA9
Class A-2 07401D AB7
Class A-3 07401D AC5
Class A-AB 07401D AD3
Class A-4 07401D BC4
Class A-1A 07401D AE1
Class A-M 07401D AF8
Class AM-A 07401D AG6
Class A-J 07401D AH4
Class XX-X 00000X XX0
3.
Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated
The Depository Trust Company
A subsidiary of The Depository Trust & Clearing Corporation
ISSUER LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Co-Issuer(s), if applicable]
Bear Xxxxxxx Commercial Mortgage Securities Trust 2007-PWR18
--------------------------------------------------------------------------------
[Name of Issuer and Co-Issuer(s), if applicable]
See Rider 1
--------------------------------------------------------------------------------
[Security Description, including series designation if applicable]
See Rider 2
--------------------------------------------------------------------------------
[CUSIP Number of the Securities]
December 27, 2007
--------------------------
[For Municipal Issues: [Date]
Underwriting Department--Eligibility; 25th Floor]
[For Corporate Issues:
General Counsel's Office; 22nd Floor]
THE DEPOSITORY TRUST COMPANY
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
This letter sets forth our understanding with respect to the Securities
represented by the CUSIP number referenced above (the "Securities"). Issuer
requests that The Depository Trust Company ("DTC") accept the Securities as
eligible for deposit at DTC. The DTC Participant, See Rider 3 (manager,
underwriter, or placement agent) will distribute the securities through DTC.
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with DTC's Rules with respect to the Securities, Issuer
represents to DTC that Issuer will comply with the requirements applicable to it
stated in DTC's Operational Arrangements (found at XXX.XXXX.XXX and
XXX.XXX.XXX), as they may be amended from time to time.
Very truly yours,
Bear Xxxxxxx Commercial Mortgage
Securities Trust 2007-PWR18
Note: By: Xxxxx Fargo Bank, National
----- Association
not in its individual capacity, but
Schedule A contains statements solely as Certificate Administrator
that DTC believes accurately ------------------------------------------
describe DTC, the method of effecting (Issuer)
book-entry transfers of securities
distributed through DTC, and certain
related matters. By: /s/ Xxxxxxxx Xxxxxxxxxx
-------------------------------------
(Authorized Officer's Signature)
Received and Accepted: Xxxxxxxx Xxxxxxxxxx
THE DEPOSITORY TRUST COMPANY ----------------------------------------
(Print Name)
By: /s/ Xxxxx Xxxxxxxx
---------------------------------- 0000 Xxx Xxxxxxxxx Xxxx
----------------------------------------
(Street Address)
Columbia MD USA 21045-1951
----------------------------------------
(City) (State) (Country) (Zip Code)
( 000 ) 000-0000
----------------------------------------
(Phone Number)
xxxxxxxx.x.xxxxxxxxxx@xxxxxxxxxx.xxx
[LOGO] DTCC(R) ----------------------------------------
The Depository Trust & (E-mail Address)
Clearing Corporation
[03/05]
SCHEDULE A
(TO ISSUER LETTER OF REPRESENTATIONS)
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
-----------------------------------
(PREPARED BY DTC--BRACKETED MATERIAL MAY BE APPLICABLE ONLY TO CERTAIN ISSUES)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue,and will be deposited with DTC. [If, however, the aggregate
principal amount of [any] issue exceeds $500 million, one certificate will be
issued with respect to each $500 million of principal amount, and an additional
certificate will be issued with respect to any remaining principal amount of
such issue.]
2. DTC, the world's largest securities depository, is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides
asset servicing for over 2.2 million issues of U.S. and non-U.S. equity issues,
corporate and municipal debt issues, and money market instruments from over 100
countries that DTC's participants ("Direct Participants") deposit with DTC. DTC
also facilitates the post-trade settlement among Direct Participants of sales
and other securities transactions in deposited securities, through electronic
computerized book-entry transfers and pledges between Direct Participants'
accounts. This eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and non-U.S. securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation ("DTCC"). DTCC, in turn, is owned by a number of Direct
Participants of DTC and Members of the National Securities Clearing Corporation,
Fixed Income Clearing Corporation, and Emerging Markets Clearing Corporation
(NSCC, FICC, and EMCC, also subsidiaries of DTCC), as well as by the New York
Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as both U.S. and non-U.S. securities brokers and
dealers, banks, trust companies, and clearing corporations that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). DTC has Standard & Poor's highest rating:
AAA. The DTC Rules applicable to its Participants are on file with the
Securities and Exchange Commission. More information about DTC can be found at
XXX.XXXX.XXX and XXX.XXX.XXX.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner")is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co., or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other DTC nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity
[03/05]
of the Direct Participants to whose accounts such Securities are credited, which
may or may not be the Beneficial Owners. The Direct and Indirect Participants
will remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment the transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the Security documents. For example, Beneficial
Owners of Securities may wish to ascertain that the nominee holding the
Securities for their benefit has agreed to obtain and transmit notices to
Beneficial Owners. In the alternative, Beneficial Owners may wish to provide
their names and addresses to the registrar and request that copies of notices be
provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or
vote with respect to Securities unless authorized by a Direct Participant in
accordance with DTC's Procedures. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent, on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividend payments to Cede & Co. (or such
other nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants will be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as depository with respect
to the Securities at any time by giving reasonable notice to Issuer or Agent.
Under such circumstances, in the event that a successor depository is not
obtained, Security certificates are required to be printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry-only
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered to DTC.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
[3/04]
The Depository Trust Company
A subsidiary of The Depository Trust & Clearing Corporation
REPRESENTATIONS FOR RULE 144A SECURITIES--
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
-----------------------------------------------
Issuer Name: Bear Xxxxxxx commercial Mortgage Securities Trust 2007-PWR18
-------------------------------------------------------------------
Description of Securities: Class X-1, Class X-2, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and
Class K Certificates
-----------------------------------------------------
CUSIP Number(s): See Rider 2
---------------------------------------------------------------
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS identification number that was different from any CUSIP or CINS
identification number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a CUSIP
or CINS identification number is obtained for all unrestricted securities of the
same class that is different from any CUSIP or CINS identification number
assigned to a Legally or Contractually Restricted Security of such class, and
shall notify DTC promptly in the event that it is unable to do so. Issuer
represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are:
[an issue of nonconvertible debt securities or nonconvertible preferred stock
which is rated in one of the top four categories by a nationally recognized
statistical rating organization ("Investment Grade Securities").]
3. If the Securities are not Investment-Grade Securities, Issuer and
Agent(2) acknowledge that if such Securities cease to be included in an SRO Rule
144A System during any period in which such Securities are Legally or
Contractually Restricted Securities, such Securities shall no longer be eligible
for DTC's services. Furthermore, DTC may discontinue providing its services as
securities depository with
_________________________________
(1)A "Legally Restricted Security" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted Security" is
a security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Securities Act, Rule 144A, Rule 144, or in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4 of the Securities Act and not involving any public
offering; provided, however, that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be a
"Contractually Restricted Security." For purposes of this definition, in order
for a depositary receipt to be considered a "Legally or Contractually Restricted
Security," the underlying security must also be a "Legally or Contractually
Restricted Security."
(2)Agent shall be defined as Depositary, Trustee, Trust Company, Transfer
Agent or Paying Agent as such definition applies in the DTC Letter of
Representations to which this rider may be attached.
[LOGO] DTCC(R)
The Depository Trust &
Clearing Corporation Rider1-Jan05
respect to the Securities at any time by giving reasonable notice to Issuer or
Agent. Under any of the aforementioned circumstances, at DTC's request, Issuer
and Agent shall cooperate fully with DTC by taking appropriate action to make
available one or more separate certificates evidencing Securities to any DTC
Participant ("Participant") having Securities credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities. Without limiting the generality of the
preceding sentence, Issuer and Agent acknowledge that DTC shall treat any
Participant having Securities credited to its DTC accounts as entitled to
receive distributions (and voting rights, if any) in respect of the Securities,
and to receive from DTC certificates evidencing Securities. Issuer and Agent
recognize that DTC does not in any way undertake to, and shall not have any
responsibility to, monitor or ascertain the compliance of any transactions in
the Securities with any of the provisions: (a) of Rule 144A; (b) of other
exemptions from registration under the Securities Act or any other state or
federal securities laws; or (c) of the offering documents.
Rider1-Jan05
-2-
The Depository Trust Company
A subsidiary of The Depository Trust & Clearing Corporation
REPRESENTATIONS FOR RULE 144A SECURITIES--
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
-----------------------------------------------
Issuer Name: Bear Xxxxxxx Commercial Mortgage Securities Trust 2007-PWR18
-------------------------------------------------------------------
Description of Securities: Class L, Class M, Class N, Class O, Class P, Class Q
and Class S
-----------------------------------------------------
CUSIP Number(s): See Rider 2
---------------------------------------------------------------
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS identification number that was different from any CUSIP or CINS
identification number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a CUSIP
or CINS identification number is obtained for all unrestricted securities of the
same class that is different from any CUSIP or CINS identification number
assigned to a Legally or Contractually Restricted Security of such class, and
shall notify DTC promptly in the event that it is unable to do so. Issuer
represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are:
[included within ___________PORTAL___________________, a Self-Regulatory
Organization System approved by the Securities and Exchange Commission for the
reporting of quotation and trade information of securities eligible for transfer
pursuant to Rule 144A (an "SRO Rule 144A System").]
3. If the Securities are not Investment-Grade Securities, Issuer and
Agent(2) acknowledge that if such Securities cease to be included in an SRO Rule
144A System during any period in which such Securities are Legally or
Contractually Restricted Securities, such Securities shall no longer be eligible
for DTC's services. Furthermore, DTC may discontinue providing its services as
securities depository with
______________________
(1)A "Legally Restricted Security" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted Security" is
a security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Securities Act, Rule 144A, Rule 144, or in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4 of the Securities Act and not involving any public
offering; provided, however, that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be a
"Contractually Restricted Security." For purposes of this definition, in order
for a depositary receipt to be considered a "Legally or Contractually Restricted
Security," the underlying security must also be a "Legally or Contractually
Restricted Security."
(2)Agent shall be defined as Depositary, Trustee, Trust Company, Transfer
Agent or Paying Agent as such definition applies in the DTC Letter of
Representations to which this rider may be attached.
Rider1-Jan05
[LOGO] DTCC(R)
THE DEPOSITORY TRUST &
CLEARING CORPORATION
respect to the Securities at any time by giving reasonable notice to Issuer or
Agent. Under any of the aforementioned circumstances, at DTC's request, Issuer
and Agent shall cooperate fully with DTC by taking appropriate action to make
available one or more separate certificates evidencing Securities to any DTC
Participant ("Participant") having Securities credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities. Without limiting the generality of the
preceding sentence, Issuer and Agent acknowledge that DTC shall treat any
Participant having Securities credited to its DTC accounts as entitled to
receive distributions (and voting rights, if any) in respect of the Securities,
and to receive from DTC certificates evidencing Securities. Issuer and Agent
recognize that DTC does not in any way undertake to, and shall not have any
responsibility to, monitor or ascertain the compliance of any transactions in
the Securities with any of the provisions: (a) of Rule 144A; (b) of other
exemptions from registration under the Securities Act or any other state or
federal securities laws; or (c) of the offering documents.
Rider1-Jan05
-2-
RIDERS
1.
APPROX. INITIAL TOTAL
APPROX. % INITIAL PRINCIPAL BALANCE OR APPROX. INITIAL PASS-
CLASS TOTAL CREDIT SUPPORT NOTIONAL AMOUNT THROUGH RATE
--------- -------------------- --------------------- ---------------------
X-1 N/A $2,502,224,530 0.065%
X-2 N/A $2,442,815,000 0.538%
B 10.375% $ 25,047,000 6.413%
C 9.375% $ 25,047,000 6.413%
D 8.625% $ 18,786,000 6.413%
E 7.625% $ 25,047,000 6.413%
F 6.875% $ 18,786,000 6.413%
G 5.875% $ 25,047,000 6.413%
H 5.000% $ 21,916,000 6.413%
J 4.250% $ 18,786,000 6.413%
K 3.250% $ 25,047,000 6.413%
L 2.875% $ 9,393,000 4.664%
M 2.500% $ 9,393,000 4.664%
N 2.125% $ 9,392,000 4.664%
O 1.875% $ 6,262,000 4.664%
P 1.750% $ 3,131,000 4.664%
Q 1.625% $ 3,131,000 4.664%
S 0.000% $ 40,702,471 4.664%
2.
CLASS CUSIP NUMBER
------------ --------------------
X-1(1) No.1 07401D AK7
X-1(2) No.2 U0742R AA8
X-2(1) No.1 07401D BD2
X-2(2) No.2 U0742R AT7
B(1) No.1 07401D AL5
B(2) No.2 U0742R AB6
C(1) No.1 07401D AM3
C(2) No.2 U0742R AC4
D(1) No.1 07401D AN1
D(2) No.2 U0742R AD2
E(1) No.1 07401D AP6
E(2) No.2 U0742R AE0
F(1) No.1 07401D AQ4
F(2) No.2 U0742R AF7
G(1) No.1 07401D AR2
G(2) No.2 U0742R AG5
H(1) No.1 07401D AS0
H(2) No.2 U0742R AH3
J(1) No.1 07401D AT8
J(2) Xx.0 X0000X XX0
X(0) Xx.0 00000X AU5
K(2) No.2 U0742R AK6
L(1) No.1 07401D AV3
L(2) No.2 U0742R AL4
M(1) No.1 07401D AW1
M(2) No.2 U0742R AM2
N(1) No.1 07401D AX9
N(2) No.2 U0742R AN0
O(1) No.1 07401D AY7
O(2) No.2 U0742R AP5
P(1) No.1 07401D AZ4
P(2) No.2 U0742R AQ3
Q(1) No.1 07401D BA8
Q(2) No.2 U0742R AR1
S(1) No.1 07401D BB6
S(2) No.2 U0742R AS9
(1) Rule 144A Securities.
(2) Regulation S Securities.
3.
Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated
EXHIBIT C-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
Bear Xxxxxxx Commercial Mortgage Securities Inc., 2007-PWR18
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18
In connection with the administration of the Mortgage Files held by
or on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of December 1, 2007 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc. as depositor, Prudential Asset
Resources, Inc. as a master servicer (in such capacity, a "Master Servicer"),
Xxxxx Fargo Bank, National Association as a master servicer (in such capacity, a
"Master Servicer"), as certificate administrator and as tax administrator,
Centerline Servicing Inc. as general special servicer and you as trustee (in
such capacity, the "Trustee"), the undersigned as Master Servicer with respect
to the following described Mortgage Loan hereby requests a release of the
Mortgage File (or the portion thereof specified below) held by or on behalf of
you as Trustee with respect to such Mortgage Loan for the reason indicated
below.
Property Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies
that all amounts received in connection with the Mortgage Loan
that are required to be credited to the Collection Account
pursuant to the Pooling and Servicing Agreement, have been or
will be so credited.
______ 2. Other. (Describe) ____________________________________________
______________________________________________________________
C-1-1
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof, unless the Mortgage
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[ ]
as a Master Servicer
By:___________________________________
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
Bear Xxxxxxx Commercial Mortgage Securities Inc., 2007-PWR18
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18
In connection with the administration of the Mortgage Files held by
or on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of December 1, 2007 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc. as depositor, Prudential Asset
Resources, Inc. as a master servicer, Xxxxx Fargo Bank, National Association as
a master servicer, as certificate administrator and as tax administrator,
Centerline Servicing Inc. as general special servicer (in such capacity, the
"General Special Servicer") and you as trustee (in such capacity, the
"Trustee"), the undersigned as the applicable Special Servicer with respect to
the following described Mortgage Loan hereby requests a release of the Mortgage
File (or the portion thereof specified below) held by or on behalf of you as
Trustee with respect to such Mortgage Loan for the reason indicated below.
Property Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan is being foreclosed, in which case the Mortgage File
(or such portion thereof) will be returned when no longer required by us for
such purpose, or unless the
C-2-1
Mortgage Loan has been paid in full or otherwise liquidated, in which case the
Mortgage File (or such portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[__________________________]
as [General Special Servicer]
[Loan-Specific Special Servicer for
the _______ Loan Group]
By: ________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE ADMINISTRATOR REPORT
D-1-1
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
TABLE OF CONTENTS
-----------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(s)
-----------------------------------------------------------------------------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation Detail 6
Ratings Detail 7
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
NOI Detail 18
Principal Prepayment Detail 19
Historical Detail 20
Delinquency Loan Detail 21
Specially Serviced Loan Detail 22 - 23
Advance Summary 24
Modified Loan Detail 25
Historical Liquidated Loan Detail 26
Historical Bond / Collateral Realized Loss Reconciliation 27
Interest Shortfall Reconciliation Detail 28 - 29
Defeased Loan Detail 30
Supplemental Reporting 31
-----------------------------------------------------------------------------
DEPOSITOR MASTER SERVICER MASTER SERVICER SPECIAL SERVICER
-------------------------------- -------------------------------- ---------------------------- -----------------------------
Bear Xxxxxxx Commercial Mortgage Xxxxx Fargo Bank, N.A. Prudential Asset Centerline
Securities, Inc. 1320 Willow Pass Road, Resources, Inc. Servicing, Inc.
Xxxxx 000 0000 Xxxx Xxxxxx, 0000 X. X'Xxxxxx
000 Xxxxxxx Xxxxxx xxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx Xxxxx 0000X Xxxx., Xxxxx. 000
Xxx Xxxx, XX 00000 Xxxxxxx, XX 00000 Xxxxxx, XX 00000 Xxxxxx, XX 00000
Contact: General Information Contact: Xxxxx X. Xxx Contact: Xxx Xxxxxxx Contact: Xxxxx Xxxxxx
Number
Phone Number: (000) 000-0000 Phone Number: Phone Number: (000) 000-0000 Phone Number: (000) 000-0000
-------------------------------- -------------------------------- ---------------------------- -----------------------------
This report has been compiled from information provided to Xxxxx Fargo Bank, N.A. by various third parties, which may include the
Master Servicer, Special Servicer and others. Xxxxx Fargo Bank, N.A. has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Xxxxx Fargo Bank, N.A. expressly disclaims any responsibility for
the accuracy or completeness of information furnished by third parties.
Page 1 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE DISTRIBUTION DETAIL
-----------------------------------------------------------------------------------------------------------------------------------
Realized
Loss/
Additional Current
Pass-Through Original Beginning Principal Interest Prepayment Trust Fund Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Expenses Distribution Balance Level (1)
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-AB 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
AM-A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
AJ-A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
V 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
--------------------------------------------------------------------------------------------------
X-1 0.000000 0.00 0.00 0.00 0.00 0.00 0.00
X-2 0.000000 0.00 0.00 0.00 0.00 0.00 0.00
--------------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all classes less (B) the sum of (i) the ending balance of
the designated class and (ii) the ending certificate balance of all classes which are not subordinate to the designated class and
dividing the result by (A).
Page 2 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE FACTOR DETAIL
----------------------------------------------------------------------------------------------------------------------------------
Realized
Loss/
Additional
Trust
Beginning Principal Interest Prepayment Fund Ending
Class CUSIP Balance Distribution Distribution Premium Expenses Balance
---------------------------------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-AB 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
AM-A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
AJ-A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
N 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
O 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
Q 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
S 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
V 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
-------------------------------------------------------------------------------------------------
X-1 0.00000000 0.00000000 0.00000000 0.00000000
X-2 0.00000000 0.00000000 0.00000000 0.00000000
-------------------------------------------------------------------------------------------------
Page 3 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
RECONCILIATION DETAIL
PRINCIPAL RECONCILIATION
-----------------------------------------------------------------------------------------------------------------------------------
Stated Unpaid Stated Unpaid Current
Beginning Beginning Ending Ending Principal
Principal Principal Scheduled Unscheduled Principal Realized Principal Principal Distribution
Loan Group Balance Balance Principal Principal Adjustments Loss Balance Balance Amount
-----------------------------------------------------------------------------------------------------------------------------------
1 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE INTEREST RECONCILIATION
------------------------------------------------------------------------------------------------------------------------------------
Remaining
Net Aggregate Distributable Unpaid
Accrued Prepayment Distributable Certificate Additional Distributable
Accrual Accrual Certificate Interest Certificate Interest WAC CAP Trust Fund Interest Certificate
Class Dates Days Interest Shortfall Interest Adjustment Shortfall Expenses Distribution Interest
------------------------------------------------------------------------------------------------------------------------------------
A-1 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-AB 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
AM-A 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
AJ-A 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
X-1 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
X-2 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
S 0 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
Page 4 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
OTHER REQUIRED INFORMATION
------------------------------------------------------------------------------------------------------------------------------------
Available Distribution Amount (1) 0.00
Master Servicing Fee Summary
Current Period Accrued Master Servicing Fees 0.00
Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servicing Fees 0.00
Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
Appraisal Reduction Amount
-------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER Xxx.Xxx.
Number Effected Amount Date
-------------------------------------------------
-------------------------------------------------
Total
-------------------------------------------------
(1) The Available Distribution Amount includes any Prepayment Premiums.
Page 5 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CASH RECONCILIATION DETAIL
------------------------------------------------------------------------------------
TOTAL FUNDS COLLECTED
INTEREST:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
--------
TOTAL INTEREST COLLECTED 0.00
PRINCIPAL:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
--------
TOTAL PRINCIPAL COLLECTED 0.00
OTHER:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
--------
TOTAL OTHER COLLECTED 0.00
--------
TOTAL FUNDS COLLECTED 0.00
========
TOTAL FUNDS DISTRIBUTED
FEES:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
--------
TOTAL FEES 0.00
ADDITIONAL TRUST FUND EXPENSES:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
--------
TOTAL ADDITIONAL TRUST FUND EXPENSES 0.00
INTEREST RESERVE DEPOSIT 0.00
PAYMENTS TO CERTIFICATEHOLDERS & OTHERS:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
--------
TOTAL PAYMENTS TO CERTIFICATEHOLDERS & OTHERS 0.00
--------
TOTAL FUNDS DISTRIBUTED 0.00
========
Page 6 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
RATINGS DETAIL
--------------------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
--------------------------------------------------------------------------------------------------------------------------
Class CUSIP Fitch Xxxxx'x S & P DBRS Fitch Xxxxx'x S & P DBRS
--------------------------------------------------------------------------------------------------------------------------
X-0
X-0
X-0
X-XX
A-4
A-1A
A-M
AM-A
A-J
AJ-A
X-1
X-2
B
C
D
E
F
G
H
J
K
L
M
N
O
P
Q
S
-------------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of original issuance.
X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made subsequent to
issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained directly from the
applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since they were obtained.
Because the ratings may have changed, you may want to obtain current ratings directly from the rating agencies.
Fitch, Inc. Xxxxx'x Investors Service Standard & Poor's Rating Services DBRS, Inc.
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 New York, New York 10041 Xxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000 (000) 000-0000 (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Page 7 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
AGGREGATE POOL
SCHEDULED BALANCE STATE (3)
-------------------------------------------------------------------- -------------------------------------------------------------
% of Weighted % of Weighted
Scheduled # of Scheduled Agg. WAM Avg DSCR # of Scheduled Agg. WAM Avg DSCR
Balance loans Balance Bal. (2) WAC (1) State Props. Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
See footnotes on last page of this section.
Page 8 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
AGGREGATE POOL
DEBT SERVICE COVERAGE RATIO PROPERTY TYPE (3)
-------------------------------------------------------------------- -------------------------------------------------------------
% of Weighted % of Weighted
Debt Service # of Scheduled Agg. WAM Avg DSCR Property # of Scheduled Agg. WAM Avg DSCR
Coverage Ratio loans Balance Bal. (2) WAC (1) Type Props. Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
NOTE RATE SEASONING
-------------------------------------------------------------------- -------------------------------------------------------------
% of Weighted % of Weighted
# of Scheduled Agg. WAM Avg DSCR # of Scheduled Agg. WAM Avg DSCR
Note Rate loans Balance Bal. (2) WAC (1) Seasoning loans Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
See footnotes on last page of this section.
Page 9 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
AGGREGATE POOL
ANTICIPATED REMAINING TERM (ARD AND BALLOON LOANS) REMAINING STATED TERM (FULLY AMORTIZING LOANS)
-------------------------------------------------------------------- -------------------------------------------------------------
Anticipated % of Weighted Remaining % of Weighted
Remaining # of Scheduled Agg. WAM Avg DSCR Stated # of Scheduled Agg. WAM Avg DSCR
Term (2) loans Balance Bal. (2) WAC (1) Term loans Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
REMAINING AMORTIZATION TERM (ARD AND BALLOON LOANS) AGE OF MOST RECENT NOI
-------------------------------------------------------------------- -------------------------------------------------------------
Age of
Remaining % of Weighted Most % of Weighted
Amortization # of Scheduled Agg. WAM Avg DSCR Recent # of Scheduled Agg. WAM Avg DSCR
Term loans Balance Bal. (2) WAC (1) NOI loans Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In
all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer,
information from the offering document is used. The Trustee makes no representations as to the accuracy of the data provided by the
borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-off
Date balance of each property as disclosed in the offering document.
Page 10 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP I
SCHEDULED BALANCE STATE (3)
-------------------------------------------------------------------- -------------------------------------------------------------
% of Weighted % of Weighted
Scheduled # of Scheduled Agg. WAM Avg DSCR # of Scheduled Agg. WAM Avg DSCR
Balance loans Balance Bal. (2) WAC (1) State Props. Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
See footnotes on last page of this section.
Page 11 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP I
DEBT SERVICE COVERAGE RATIO PROPERTY TYPE (3)
-------------------------------------------------------------------- -------------------------------------------------------------
Debt % %
Service of Weighted of Weighted
Coverage # of Scheduled Agg. WAM Avg DSCR # of Scheduled Agg. WAM Avg DSCR
Ratio loans Balance Bal. (2) WAC (1) Property Type Props. Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
NOTE RATE SEASONING
-------------------------------------------------------------------- -------------------------------------------------------------
% of Weighted % of Weighted
Note # of Scheduled Agg. WAM Avg DSCR # of Scheduled Agg. WAM Avg DSCR
Rate loans Balance Bal. (2) WAC (1) Seasoning loans Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
See footnotes on last page of this section.
Page 12 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP I
ANTICIPATED REMAINING TERM (ARD AND BALLOON LOANS) REMAINING STATED TERM (FULLY AMORTIZING LOANS)
-------------------------------------------------------------------- -------------------------------------------------------------
Anticipated % of Weighted Remaining % of Weighted
Remaining # of Scheduled Agg. WAM Avg DSCR Stated # of Scheduled Agg. WAM Avg DSCR
Term (2) loans Balance Bal. (2) WAC (1) Term loans Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
REMAINING AMORTIZATION TERM (ARD AND BALLOON LOANS) AGE OF MOST RECENT NOI
-------------------------------------------------------------------- -------------------------------------------------------------
Age of
Remaining % of Weighted Most % of Weighted
Amortization # of Scheduled Agg. WAM Avg DSCR Recent # of Scheduled Agg. WAM Avg DSCR
Term loans Balance Bal. (2) WAC (1) NOI loans Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In
all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer,
information from the offering document is used. The Trustee makes no representations as to the accuracy of the data provided by the
borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-off
Date balance of each property as disclosed in the offering document.
Page 13 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP II
SCHEDULED BALANCE STATE (3)
-------------------------------------------------------------------- -------------------------------------------------------------
% of Weighted % of Weighted
Scheduled # of Scheduled Agg. WAM Avg DSCR # of Scheduled Agg. WAM Avg DSCR
Balance loans Balance Bal. (2) WAC (1) State Props. Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
See footnotes on last page of this section.
Page 14 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP II
DEBT SERVICE COVERAGE RATIO PROPERTY TYPE (3)
-------------------------------------------------------------------- -------------------------------------------------------------
Debt
Service % of Weighted % of Weighted
Coverage # of Scheduled Agg. WAM Avg DSCR # of Scheduled Agg. WAM Avg DSCR
Ratio loans Balance Bal. (2) WAC (1) Property Type Props. Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
NOTE RATE SEASONING
-------------------------------------------------------------------- -------------------------------------------------------------
% of Weighted % of Weighted
Note # of Scheduled Agg. WAM Avg DSCR # of Scheduled Agg. WAM Avg DSCR
Rate loans Balance Bal. (2) WAC (1) Seasoning loans Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
See footnotes on last page of this section.
Page 15 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP II
ANTICIPATED REMAINING TERM (ARD AND BALLOON LOANS) REMAINING STATED TERM (FULLY AMORTIZING LOANS)
-------------------------------------------------------------------- -------------------------------------------------------------
Anticipated % of Weighted Remaining % of Weighted
Remaining # of Scheduled Agg. WAM Avg DSCR Stated # of Scheduled Agg. WAM Avg DSCR
Term (2) loans Balance Bal. (2) WAC (1) Term loans Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
REMAINING AMORTIZATION TERM (ARD AND BALLOON LOANS) AGE OF MOST RECENT NOI
-------------------------------------------------------------------- -------------------------------------------------------------
Age of
Remaining % of Weighted Most % of Weighted
Amortization # of Scheduled Agg. WAM Avg DSCR Recent # of Scheduled Agg. WAM Avg DSCR
Term loans Balance Bal. (2) WAC (1) NOI loans Balance Bal. (2) WAC (1)
-------------------------------------------------------------------- -------------------------------------------------------------
-------------------------------------------------------------------- -------------------------------------------------------------
Totals Totals
-------------------------------------------------------------------- -------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In
all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer,
information from the offering document is used. The Trustee makes no representations as to the accuracy of the data provided by the
borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-off
Date balance of each property as disclosed in the offering document.
Page 16 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN DETAIL
--------------------------------------------------------------------------------------------------------------------------------
Property Anticipated Neg. Beginning Ending
Loan Type Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled
Number ODCR (1) City State Payment Payment Coupon Date Date (Y/N) Balance Balance
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------
Paid Appraisal Appraisal Res. Mod.
Loan Thru Reduction Reduction Strat. Code
Number Date Date Amount (2) (3)
----------------------------------------------------------
----------------------------------------------------------
Totals
----------------------------------------------------------
(1) Property Type Code (2) Resolution Strategy Code
---------------------- ----------------------------
MF - Multi-Family OF - Office 1 - Modification 6 - DPO 10 - Deed in Lieu Of
RT - Retail MU - Mixed Use 2 - Foreclosure 7 - REO Foreclosure
HC - Health Care LO - Lodging 3 - Bankruptcy 8 - Resolved 11 - Full Payoff
IN - Industrial SS - Self Storage 4 - Extension 9 - Pending Return 12 - Reps and Warranties
WH - Warehouse OT - Other 5 - Note Sale to Master Servicer 13 - Other or TBD
MH - Mobile Home Park
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
Page 17 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
NOI DETAIL
----------------------------------------------------------------------------------------------------------------------------------
Ending Most Most Most Recent Most Recent
Loan Property Scheduled Recent Recent NOI Start NOI End
Number ODCR Type City State Balance Fiscal NOI NOI Date Date
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------------------------
Page 18 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
PRINCIPAL PREPAYMENT DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Amount Prepayment Penalties
Offering Document -------------------------------------------------------------------------------------
Loan Number Loan Group Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenance Premium
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Page 19 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
HISTORICAL DETAIL
---------------------------------------------------------------------------------------------------------------
Delinquencies
---------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------
Prepayments Rate and Maturities
------------------------------------------------------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
------------------------------------------------------------------------------
--------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies.
Page 20 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
DELINQUENCY LOAN DETAIL
---------------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
Actual Outstanding
Foreclosure Principal Servicing Bankruptcy REO
Loan Number Date Balance Advances Date Date
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------
(1) Status of Mortgage Loan (2) Resolution Strategy Code
---------------------------- -----------------------------
A - Payments Not Received 2 - Two Months Delinquent 1 - Modification 6 - DPO 10 - Deed In Lieu
But Still in Grace Period 3 - Three or More Months Delinquent 2 - Foreclosure 7 - REO Of Forclosure
B - Late Payment But Less 4 - Assumed Scheduled Payment 3 - Bankruptcy 8 - Resolved 11 - Full Payoff
Than 1 Month Delinquent (Performing Matured Loan) 4 - Extension 9 - Pending Return 12 - Reps and
0 - Current 7 - Foreclosure 5 - Note Sale to Master Servicer Warranties
1 - One Month Delinquent 9 - REO 13 - Other or TBD
Page 21 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
SPECIALLY SERVICED LOAN DETAIL - PART 1
-----------------------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest Actual
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate Balance
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Net Remaining
Distribution Operating NOI Note Maturity Amortization
Date Income Date DSCR Date Date Term
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
(1) Resolution Strategy Code (2) Property Type Code
---------------------------- -----------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of MF - Multi-Family OF - Office
2 - Foreclosure 7 - REO Foreclosure RT - Retail MU - Mixed use
3 - Bankruptcy 8 - Resolved 11 - Full Payoff HC - Health Care LO - Lodging
4 - Extension 9 - Pending Return 12 - Reps and Warranties IN - Industrial SS - Self Storage
5 - Note Sale to Master Servicer 13 - Other or TBD WH - Warehouse OT - Other
MH - Mobile Home Park
Page 22 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
SPECIALLY SERVICED LOAN DETAIL - PART 2
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
-----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
Page 23 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
MODIFIED LOAN DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification Post-Modification Pre-Modification Post-Modification Modification Modification
Number Cross-Reference Balance Balance Interest Rate Interest Rate Date Description
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Page 24 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
ADVANCE SUMMARY
------------------------------------------------------------------------------------
Current Period
Interest
Current Outstanding on P&I and
P&I Outstanding Servicing Servicing
Loan Group Advances P&I Advances Advances Advances Paid
------------------------------------------------------------------------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------
Page 25 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
HISTORICAL LIQUIDATED LOAN DETAIL
-------------------------------------------------------------------------------------------------------------------------------
Net
Net Proceeds
Beginning Fees, Most Recent Gross Sales Proceeds Available
Distribution Scheduled Advances, Appraised Proceeds or Received on for
Date ODCR Balance and Expenses * Value or BPO Other Proceeds Liquidation Distribution
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Current Total
-------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
-------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
Realized Date of Current Current Period Cumulative Loss to Loan
Distribution Loss Period Adj. Adjustment Adjustment with Cum
Date ODCR to Trust to Trust to Trust to Trust Adj. to Trust
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
Current Total
--------------------------------------------------------------------------------------------------------------
Cumulative Total
--------------------------------------------------------------------------------------------------------------
* Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
Page 26 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
HISTORICAL BOND/COLLATERAL LOSS RECONCILIATION DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Prior
Realized
Offering Beginning Aggregate Loss Applied Amounts Interest Modification
Distribution Document Balance Realized Loss to Covered by (Shortages)/ /Appraisal
Date Cross-Reference at Liquidation on Loans Certificates Credit Support Excesses Reduction Adj.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
(Recoveries)/
Realized Loss Losses Applied
Offering Additional Applied to Recoveries of to
Distribution Document (Recoveries) Certificates to Realized Losses Certificate
Date Cross-Reference /Expenses Date Paid as Cash Interest
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------
Page 27 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
INTEREST SHORTFALL RECONCILIATION DETAIL - PART 1
------------------------------------------------------------------------------------------------------------------------------------
Stated
Offering Principal Current Ending Special Servicing Fees
Document Balance at Scheduled --------------------------------------------------
Cross-Reference Contribution Balance Monthly Liquidation Work Out ASER (PPIS) Excess
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Modified
Interest
Offering Non-Recoverable Interest Rate Additional
Document (Scheduled on (Reduction) Trust Fund
Cross-Reference Interest) Advances /Excess Expense
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------
Page 28 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
INTEREST SHORTFALL RECONCILIATION DETAIL - PART 2
-----------------------------------------------------------------------------------------------------------------------------------
Reimb of Advances to the
Servicer
Stated ---------------------------------
Offering Principal Current Ending Left to Other
Document Balance at Scheduled Reimburse (Shortfalls)/
Cross-Reference Contribution Balance Current Month Master Servicer Refunds Comments
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 2 Total 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 1 Total 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Total Interest Shortfall Allocated to Trust 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Page 29 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
DEFEASED LOAN DETAIL
---------------------------------------------------------------------------------------------------
Offering Ending
Document Scheduled Maturity Defeasance
Loan Number Cross-Reference Balance Date Note Rate Status
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------
Page 30 of 31
------------ -----------------------------------------
[LOGO]XXXXX For Additional Information please contact
FARGO Customer Service - CTSLink
------------ 1-866-846-4526
Reports Available xxx.xxxxxxx.xxx
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. -----------------------------------------
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SECURITIES ADMINISTRATION SERVICES
0000 XXXXXXXXXX XXXXXX SERIES 2007-PWR18 PAYMENT DATE: 01/11/2008
XXXXXXXXX, XX 00000-0000 DETERMINATION DATE: 01/07/2008
-----------------------------------------------------------------------------------------------------------------------------------
SUPPLEMENTAL REPORTING
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 31 of 31
EXHIBIT D-2
MINIMUM INFORMATION FOR CERTIFICATE ADMINISTRATOR REPORT
(1) the date of such Distribution Date, and of the Record Date,
Interest Accrual Period, and Determination Date for such Distribution Date;
(2) the aggregate Certificate Principal Balance or Notional Amount
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date;
(3) the amount of the distribution on such Distribution Date to
the Holders of each Class of Principal Balance Certificates in reduction of the
Class Principal Balance thereof;
(4) the amount of the distribution on such Distribution Date to
the Holders of each Class of REMIC III Certificates allocable to Distributable
Certificate Interest;
(5) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for such Distribution Date pursuant to Section 4.03(a);
(6) the aggregate amount and general purpose of Servicing Advances
that have been made by the Master Servicers, the Special Servicers and the
Trustee with respect to the Mortgage Loans;
(7) (A) the aggregate amount of servicing compensation in respect
of the Mortgage Pool (separately identifying the amount of each category of
compensation) paid to each Master Servicer, each Primary Servicer and each
Special Servicer during the related Collection Period, (B) the aggregate amount
of compensation in respect of the Mortgage Pool (separately identifying the
amount of each category of compensation) to the Trustee and the Certificate
Administrator and (C) the aggregate amount of servicing compensation in respect
of each Non-Trust-Serviced Pooled Mortgage Loan (separately identifying the
amount of each category of compensation) paid to the parties under the related
Non-Trust Servicing Agreement during the collection period thereunder that is
most recently ended;
(8) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution Date;
(9) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of the
Pooled Mortgage Loans (but not any successor REO Mortgage Loans to Pooled
Mortgage Loans) as of the close of business on the related Determination Date
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, as of the end of
the most recently ended collection period thereunder);
(10) the number, aggregate unpaid principal balance (as of the
close of business on the related Determination Date (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder) and aggregate Stated
D-2-1
Principal Balance (immediately after such Distribution Date) of Pooled Mortgage
Loans (A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C) delinquent
90 or more days, and (D) not delinquent but constituting Specially Serviced
Mortgage Loans or in foreclosure but not constituting a n REO Mortgage Loan;
(11) with respect to any REO Property that was included (or an
interest in which was included) in the Trust Fund as of the close of business on
the related Determination Date (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, as of the end of the most recently ended collection period
thereunder), the loan number of the related Pooled Mortgage Loan, the book value
of such REO Property and the amount of REO Revenues and other amounts, if any,
Received by the Trust with respect to such REO Property during the related
Collection Period (separately identifying the portion thereof allocable to
distributions on the Certificates) and, if available, the Appraised Value of
such REO Property as expressed in the most recent appraisal thereof and the date
of such appraisal;
(12) the total payments and other collections Received by the Trust
during the related Collection Period, the fees and expenses paid therefrom (with
an identification of the general purpose of such fees and expenses and the party
receiving such fees and expenses) and the Available Distribution Amount for such
Distribution Date;
(13) the amount of the distribution on such Distribution Date to
the Holders of each Class of REMIC III Certificates allocable to Prepayment
Premiums and/or Yield Maintenance Charges;
(14) the Distributable Certificate Interest and Accrued Certificate
Interest in respect of each Class of REMIC III Certificates for such
Distribution Date or the related Interest Accrual Period, as applicable;
(15) the Pass-Through Rate for each Class of REMIC III Certificates
for the Interest Accrual Period related to such Distribution Date;
(16) the Principal Distribution Amount and the Unadjusted Principal
Distribution Amount for such Distribution Date, separately identifying the
respective components thereof (and, in the case of any Principal Prepayment or
other unscheduled collection of principal Received by the Trust during the
related Collection Period, the loan number for the related Pooled Mortgage Loan
and the amount of such prepayment or other collection of principal);
(17) the Class Principal Balance of each Class of Principal Balance
Certificates and the Class Notional Amount of each Class of Interest-Only
Certificates, outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction therein pursuant to
Section 4.04 on such Distribution Date;
(18) (A) the loan number for each Required Appraisal Loan (or, in
the case of a Non-Trust-Serviced Pooled Mortgage Loan, with a similar status
under the related Non-Trust Servicing Agreement) and any related Appraisal
Reduction Amount (including an itemized calculation thereof) as of the related
Determination Date and (B) the aggregate Appraisal Reduction Amount for all
Required Appraisal Loans (or, in the case of a Non-Trust-Serviced
D-2-2
Pooled Mortgage Loan, with a similar status under the related Non-Trust
Servicing Agreement) as of the related Determination Date (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder);
(19) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution Date (in
the case of subclauses (A), (B) and (E)), aggregate Cut-off Date Balance (in the
case of subclauses (C) and (D)), weighted average extension period (except in
the case of subclause (B) and which shall be zero in the case of subclause (C)),
and weighted average anticipated extension period (in the case of subclause (B))
of Pooled Mortgage Loans (A) as to which the maturity dates have been extended,
(B) as to which the maturity dates are in the process of being extended, (C)
that have paid off and were never extended, (D) as to which the maturity dates
had previously been extended and have paid off and (E) as to which the maturity
dates had been previously extended and are in the process of being further
extended;
(20) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC III Certificates after giving effect to the distributions
made on such Distribution Date, and if the full amount of the Principal
Distribution Amount was not distributed on such Distribution Date, the portion
of the shortfall affecting each Class of Principal Balance Certificates;
(21) the amount of the distribution on such Distribution Date to
the Holders of each Class of Principal Balance Certificates in reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated thereto;
(22) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date (or,
in the case of a Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the
most recently ended collection period thereunder);
(23) with respect to any Pooled Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period (or, in the case
of a Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder), (A) the loan number thereof, (B) the nature
of the Liquidation Event and, in the case of a Final Recovery Determination, a
brief description of the basis for such Final Recovery Determination, (C) the
aggregate of all Liquidation Proceeds and other amounts received in connection
with such Liquidation Event (separately identifying the portion thereof
allocable to distributions on the Certificates), and (D) the aggregate amount of
any Realized Loss and Additional Trust Fund Expenses in connection with such
Liquidation Event;
(24) with respect to any REO Property as to which a Final Recovery
Determination was made during the related Collection Period (or, in the case of
a Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder), (A) the loan number of the related Pooled
Mortgage Loan, (B) a brief description of the basis for the Final Recovery
Determination, (C) the aggregate of all Liquidation Proceeds and other amounts
Received by the Trust with respect to such REO Property during the related
Collection Period (separately identifying the portion thereof allocable to
distributions on the
D-2-3
Certificates), (D) the aggregate amount of any Realized Loss and Additional
Trust Fund Expenses in respect of the related REO Pooled Mortgage Loan in
connection with such Final Recovery Determination and (E), if available, the
Appraised Value of such REO Property as expressed in the most recent appraisal
thereof and the date of such appraisal;
(25) (A) the aggregate amount of xxxxxxxxxxxx X&X Advances that had
been outstanding with respect to the Mortgage Pool at the close of business on
the related Determination Date and the aggregate amount of any interest accrued
and payable to a Master Servicer or the Trustee in respect of any such
xxxxxxxxxxxx X&X Advances in accordance with Section 4.03 as of the close of
business on such related Determination Date and (B) the aggregate amount of
unreimbursed Servicing Advances (and/or comparable advances made in respect of a
Non-Trust-Serviced Pooled Mortgage Loan under a Non-Trust Servicing Agreement)
that had been outstanding with respect to the Mortgage Pool as of the close of
business on the related Determination Date (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder) and the aggregate amount of interest accrued
and payable to the Master Servicers, the Special Servicers or the Trustee (or,
if applicable, to a comparable party under the Non-Trust Servicing Agreement) in
respect of such unreimbursed Servicing Advances in accordance with Section
3.11(g) (or, if applicable, any such comparable advance(s) in accordance with
the related Non-Trust Servicing Agreement) as of the close of business on such
related Determination Date (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, as of the end of the most recently ended collection period
thereunder);
(26) the aggregate amount of any interest on Advances in respect of
the Mortgage Pool paid to the Master Servicers and the Trustee or any other
party hereto during the related Collection Period in accordance with Section
3.11(g) and/or Section 4.03(d) (and the aggregate amount of interest on
servicing advances in respect of Non-Trust-Serviced Pooled Mortgage Loan under a
Non-Trust Servicing Agreement as of the most recently ended collection period
thereunder);
(27) a loan-by-loan listing of any Pooled Mortgage Loan that was
defeased during the related Collection Period;
(28) the amount of Excess Liquidation Proceeds held in the Excess
Liquidation Proceeds Account as of the end of the related Collection Period;
(29) the amount of the distribution made to the Holder of the Class
R Certificates on such Distribution Date;
(30) with respect to any Pooled Mortgage Loan that was the subject
of any material modification, extension or waiver during the related Collection
Period, (A) the loan number thereof, (B) the unpaid principal balance thereof
and (C) a brief description of such modification, extension or waiver, as the
case may be;
(31) with respect to any Pooled Mortgage Loan as to which an
uncured and unresolved Material Breach or Material Document Defect is alleged to
exist, (A) the loan number thereof, (B) the unpaid principal balance thereof,
(C) a brief description of such alleged
D-2-4
Material Breach or Material Document Defect, as the case may be, and (D) the
status of such alleged Material Breach or Material Document Defect, as the case
may be, including any actions known to the Certificate Administrator that are
being taken by or on behalf of the related Pooled Mortgage Loan Seller;
(32) with respect to any Pooled Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the related Collection
Period (or, in the case of an REO Acquisition of a Non-Trust-Serviced Pooled
Mortgage Loan pursuant to the related Non-Trust Servicing Agreement, during the
most recently ended collection period thereunder), the loan number of such
Pooled Mortgage Loan and the Stated Principal Balance of such Pooled Mortgage
Loan as of the related Acquisition Date;
(33) the aggregate of (A) all Realized Losses incurred during the
related Collection Period and, as of the related Determination Date, from the
Closing Date and (B) all Additional Trust Fund Expenses (with a description
thereof) incurred during the related Collection Period and, as of the related
Determination Date, from the Closing Date;
(34) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated immediately following such Distribution Date;
and
(35) the Certificate Factor for each Class of REMIC III
Certificates immediately following such Distribution Date.
In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (5), (6), (7) through (11),
(18), (22), (23) through (27), and (30) through (35) above, insofar as the
underlying information is solely within the control of the Depositor, the
Special Servicers or the Master Servicers, the Certificate Administrator may,
absent manifest error, conclusively rely on the reports to be provided by the
Depositor, the Special Servicers or the Master Servicers, as the case may be.
D-2-5
EXHIBIT E-1
FORM OF CENTERLINE INTEREST ON ADVANCE RECONCILIATION REPORT
The report shall set forth, for each Pooled Mortgage Loan for which
any Advance Interest has been paid, (i) the amount of Advance Interest, (ii) the
amount of Default Charges available to offset such Advance Interest (per Section
3.26 of the Pooling and Servicing Agreement) and (iii) the net amount of such
Advance Interest giving effect to such offset.
E-1
EXHIBIT E-2
FORM OF CENTERLINE MORTGAGE LOANS DELINQUENT REPORT
MORTGAGE LOANS DELINQUENCY REPORT
As of Month End ______________
Deal Name
LOAN LOAN PRO-SUPP ENDING SCHEDULED LATE UNALLOCATED OUTSTANDING OUTSTANDING PAID FIRST GRACE
DUE
NBR OFFICER ID PROPERTY SCH.PRIN PAYMENT FEES SUSPENSE P & I SERVICING TO DATE DATE DAYS COMMENTS
NAME .BAL ADVANCES ADVANCES
SPECIALLY SERVICED LOANS
E-2
EXHIBIT X-0
XXXX XX XXXXXXXXXX X&X ADVANCES AS OF REMITTANCE DATE REPORT
-----------------------
[DEAL NAME] ADVANCES DETAIL REPORT
-----------------------
[DEAL SERIES]
DISTRIBUTION DATE : [INSERT]
[TO BE COMPLETED AS OF MASTER
SERVICER REMITTANCE DATE]
------------------------------------------------------------------------------------------------------------------------------------
LOAN TAB BORROWERS PAID TO PRINCIPAL GROSS ADMIN ASER NET T & I SERVICING INTEREST TOTAL ACTUAL
NUMBER NO NAME DATE ADVANCE INTEREST FEE AMOUNT INTEREST ADVANCE ADVANCE ON ADVANCE PRINCIPAL
BALANCE ADVANCE PORTION ADVANCE BALANCE ADVANCES BALANCE BALANCE
BALANCE
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
TOTALS
==================================================================================================================
E-3
EXHIBIT E-4
FORM OF REALIZED LOSS TEMPLATE
---------------------------------------------------------------------------------------------------------
REALIZED LOSS FORM (PREPARED BY Instructions to MS Items that
SPECIAL AND MASTER SERVICERS) and Trustee affect CH*
------------------------------------------------------------------------------------------------------------------
PORTFOLIO NAME
SERVICER ID:
MAP TEMPLATE
FIELD TO LOAN
PERIODIC FIELD: (APPLICABLE TO FINAL RECOVERY DETERMINATION/REALIZED LOSS) DATE: 4/15/2004
--------------- -------------------------------------------------------------------------------------------------------------
TOTAL FUNDS RECEIVED ON CORRECTED MORTGAGE LOAN AND
SPECIALLY SERVICED MORTGAGE LOAN:
Sales Proceeds or Payoff Proceeds 3,600,000.00
Insurance Proceeds --
Suspense Balance --
Tax & Insurance Reserve Balance --
-- Other Reserve Balance --
-- Other Proceeds --
------------
-- TOTAL FUNDS RECEIVED 3,600,000.00
-- LESS: LIQUIDATION EXPENSES
-- Broker Fees 95,105.19
-- Other Selling Expenses --
------------
-- 95,105.19
---------------------------
L45 PROCEEDS AVAILABLE 3,504,894.91
-------------------------------------------------------------------------------------------------------------
1) AMOUNTS DUE SERVICERS AND TRUSTEE:
INCLUDES CURRENT PERIOD AND ACCRUED SERVICING FEES AND OTHER FEES:
(EXCLUDES ITEMS FROM ADDITIONAL TRUST FUND EXPENSES)
L109 A Liquidation Fee to SS on SS loan 35,048.95
L108 B Workout Fee on Corrected Mtg. loan --
New1 C Master Servicing Fees --
New1 D Special Servicing Fees --
New1 E Trustee Fees --
New1 F Other Fees --
L37 G P & I Advances (net) --
L103 H Interest on Advances- P & I 12,514.30
L38 I T&I Advances --
L103 J Interest on Advances- T&I --
L39 K Servicing Advances (other Expense Advance oustanding) --
L103 L Interest on Advances-Servicing Advances --
-- TOTAL 47,563.25
2) AMOUNTS HELD BACK FOR FUTURE PAYMENT: place in
suspense
New A Other Unpaid Fees and expenses 3,000.00 until
legal
New B Other amounts -- final
-- TOTAL 3,000.00 invoice
received
3) ACCRUED INTEREST (CURRENT PERIOD AND PRIOR INTEREST SHORTFALLS)
L23 A Current Scheduled Interest (net of fees) 36,863.48 x
L35 B Cumulative Aser Amount 50,000.00 x
New2 C Deemed non-recoverable interest (prior shortfall) 695,006.76 x
New2 D Deemed non-recoverable interest (paid from trust principal) -- x
New2 E Other unpaid interest -- x
------------
-- TOTAL 781,870.24 x
4) ADDITIONAL TRUST FUND EXPENSES (PRIOR INTEREST x SHORTFALLS OR PRINCIPAL LOSSES)
New3 A Special Servicing Fees 2,000.00 x
New3 B Work Out fees (Corrected Mortgage Loan) -- x
New3 C Interest on Advances 15,000.00 x
New3 D Other expenses: (Inspection by SS, Environmental, legal etc.) -- x
New3 E Unliquidated Advances (work-out delayed reimb.paid from trust-principal) -- x
New3 F Deemed Non-Recoverable Principal Advances (paid from trust-Principal) 1,282,322.37 x
New3 G Deemed Non-Recoverable Servicing Advances (paid from trust-Principal) 2,000,000.00 x
-- TOTAL 3,299,322.37 x
-------------
L46 TOTAL #1 THROUGH #4 - LIQUIDATION EXPENSES 4,131,755.86
-------------
------------
L27 NET PROCEEDS (PROCEEDS AVAILABLE LESS #1 THRU #4) (626,861.05) x
------------
(Proceeds available for Principal Distribution) (If
negative, no proceeds available for distribution)
------------
L6 BEGINNING SCHEDULED PRINCIPAL BALANCE 5,833,393.01 x
------------
------------
REALIZED LOSS CALCULATION 6,460,254.06 x
------------
------------
L47 REALIZED LOSS TO TRUST (PER 5,833,393.01
DEFINITION IN PSA)
==============================================================================================================
New4 IF REALIZED LOSS > BEGINNING SCHEDULED PRINCIPAL BALANCE ( IF POSITIVE NUMBER) 626,861.05
-----------------------------------------------------------------------------------------------
(REFER TO PSA FOR ALLOCATION) (OPTIONAL)
-- A Amounts allocated to Interest shortfall--Current Period --
-- B Amount applied to Interest shortfall or principal loss--Prior Period 626,861.05
-- C Amount to Realized Loss > than STB, allocate to current period principal --
-- D Other method per PSA
---------------------------------------------------------------------------------------------------------
ADDITIONAL PROCEEDS RECEIVED AFTER FINAL RECOVERY DETERMINATION/REALIZED LOSS
AMOUNTS DISTRIBUTED AS REIMBURSEMENT OF UNFUNDED PRINCIPAL BALANCE x
REDUCTIONS (PRIOR REALIZED LOSSES) (OPTIONAL)
Date Description Amount Class that received funds (optional)
---- ----------- ------ ------------------------------------
New5 5/8/2004 2000
0
subtotal Additional Proceeds 2,000.00
-------------------------------------------------------------------------------------------------------------
ADDITIONAL EXPENSES AFTER FINAL RECOVERY DETERMINATION/REALIZED
LOSS ALLOCATED TO INTEREST SHORTFALLS
Date Description Amount Class that received funds (optional) x
---- ----------- ------ ------------------------------------
New5 5/8/2004 Legal expense 1500
0
subtotal Additional Expenses 1,500.00
----------------
CUMULATIVE NET ADJUSTMENT TO TRUST 500.00
=============================================================================================================
-------------------------------------------------------------------------------------------------------------
Signature and Title of Date
Servicing Officer
CC: SPECIAL SERVICER, MASTER SERVICER, TRUSTEE, ATTACHMENT TO DISTRIBUTION STATEMENT
-------------------------------------------------------------------------------------------------------------
E-4
EXHIBIT E-5
CENTERLINE NAMING CONVENTION FOR ELECTRONIC FILE DELIVERY
Centerline Naming Convention for Electronic File Delivery
Deal Name - Prospectus Loan I.D. - Statement Type - Statement Date - Months
Covered by Statement
For Example:
JPM2000C10-00001.1-OS-12312000-12
JPM2000C10-00001.2-OS-12312000-12
JPM2000C10-00001.1-OSAR-12312000-12
JPM2000C10-00001.1-FS-12312000-12
JPM2000C10-00001.1-RR-12312000
DLJ2000CKP1-00150.1-OS-12312000-12
DLJ2000CKP1-00001.1-OSAR-12312000-12
DLJ2000CKP1-00001.1-FS-12312000-12
DLJ2000CKP1-00001.1-RR-12312000
DLJ2000CKP1-00001.1-PI-12312000
Please note there should not be any special characters in the Deal Name, i.e. no
spaces, no dashes, no underscores, etc.
The Prospectus Loan I.D. should have five leading characters, a decimal point,
and the Mortgaged Property # (1,2,3,etc).
The Statement Types are: OS Operating Statement (PDF or TIF format)
OSAR Operating Statement Analysis Report
& NOI ADJ Worksheet (Excel Format
named individually, not rolling format)
FS Borrower Financial Statement (PDF or TIF)
RR Rent Roll (Excel or PDF or TIF)
PI Property Inspection (Excel format)
HS Healthcare Survey
FR Franchise Annual Compliance Report
The Statement Date should be eight characters long - MODAYEAR where MO = months
from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as 2002 or
2003 or 2004.
THE MONTHS COVERED BY THE STATEMENT SHOULD RANGE FROM 01 TO 12.
E-5
EXHIBIT E-6
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
----------------------------------------------------------------------------------------------------------------
Information Format Frequency
----------------------------------------------------------------------------------------------------------------
Property Operating Statement Actual PDF/TIF Quarterly per Section 3.12/4.02
of PSA
----------------------------------------------------------------------------------------------------------------
Property Rent Roll Actual PDF/TIF Quarterly per Section 3.12/4.02
of PSA
----------------------------------------------------------------------------------------------------------------
Other Financials as required by Mortgage Actual PDF/TIF Per Section 3.12/4.02 of PSA
Loan Documents
----------------------------------------------------------------------------------------------------------------
Within 30 days of annual or
Property Inspection Actual PDF/TIF other inspection per Section
3.12 of PSA
----------------------------------------------------------------------------------------------------------------
P&I Advances as of Remittance Date Monthly Excel Master Servicer Remittance Date
Report(1)
----------------------------------------------------------------------------------------------------------------
Mortgage Loans Delinquent Report (2) Monthly Excel End of each month per Section
4.02 of PSA
----------------------------------------------------------------------------------------------------------------
Interest on Advance Reconciliation Report Monthly Excel Distribution Date
----------------------------------------------------------------------------------------------------------------
CMSA Setup File (Issuer/Trustee/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
Distribution Statement (Trustee) Monthly Excel/PDF Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
CMSA Bond File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
CMSA Collateral File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
Documentation Exceptions Report (Trustee) Quarterly Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------------------
Footnotes:
(1) On the Master Servicer Remittance Date following the Determination Date
for the related Distribution Date, a list of all Pooled Mortgage Loans
delinquent and requiring a P&I Advance as of the P&I Advance Date.
(2) As of the last day of the month (30th), for all delinquencies reported in
FN 1 above, a list of all Pooled Mortgage Loans which remain delinquent for such
distribution period (along with the number of days delinquent) accompanied with
any reason, in the applicable Master Servicer's opinion, for the Pooled Mortgage
Loans continued delinquency, along with an explanation of the applicable Master
Servicer's attempts to cure.
E-6
The General Special Servicer requests that the above information be
organized in ascending Prospectus Loan I.D. order and forwarded on each of the
above-listed dates via e-mail to the following addresses:
[Xxxxx Xxxxx] [Xxxxx Xxxxxxx]
Director Bond/Mortgage Surveillance President
Centerline REIT Inc. Centerline REIT Inc.
[xxxxxx@xxxxxxxxxx.xxx] [xxxxxxxx@xxxxxxxxxx.xxx]
(972) 580-1688 ext. 341 (972) 580-1688 ext. 323
E-7
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2007-PWR18
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 27, 2007
(the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred
Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________ (the "Transferor") to _________________ (the "Transferee") of the
captioned Certificates (the "Transferred Certificates") pursuant to Section 5.02
of the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of December 1, 2007 among Bear Xxxxxxx Commercial Mortgage Securities
Inc., as Depositor, Prudential Asset Resources, Inc., as a Master Servicer,
Xxxxx Fargo Bank, National Association, as a Master Servicer, as Certificate
Administrator and as Tax Administrator, Centerline Servicing Inc., as General
Special Servicer, and LaSalle Bank National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any and
all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited
F-1
any offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in any
manner, (d) made any general solicitation with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security by means of general advertising or in any other manner, or (e) taken
any other action with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security, which (in the case of any
of the acts described in clauses (a) through (e) hereof) would constitute a
distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
Very truly yours,
________________________________________
(Transferor)
By: ____________________________________
Name: _________________________________
Title: ________________________________
F-2
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2007-PWR18
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 27, 2007
(the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred
Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
[through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants)] in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2007 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association,
as a Master Servicer, as Certificate Administrator and as Tax Administrator,
Centerline Servicing Inc., as General Special Servicer, and LaSalle Bank
National Association, as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A ("Rule
144A") under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is being
made in reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificates for its own account or for the account of another Qualified
Institutional
F-2A-1
Buyer, and understands that such Transferred Certificates may be resold, pledged
or transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of
another Qualified Institutional Buyer and to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans, (d)
the Pooling and Servicing Agreement and the Trust Fund created pursuant thereto,
and (e) all related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
4. Check one of the following:
o We are a "U.S. Tax Person" and we have attached hereto
an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
o We are not a "U.S. Tax Person" and, under applicable law
in effect on the date hereof, no Taxes will be required
to be withheld by the Certificate Registrar (or its
agent) with respect to distributions to be made on the
Certificates. We have attached hereto (i) a duly
executed IRS Form W8-BEN (or successor form), which
identifies us as the beneficial owner of the
Certificates and states that we are not a U.S. Tax
Person, (ii) IRS Form W-8IMY (and appropriate
attachments) or (iii) two duly executed copies of IRS
Form W-8ECI (or successor form), which identify us as
the beneficial owner of the Certificates and state that
interest and original issue discount on the Certificates
is, or is expected to be, effectively connected with a
U.S. trade or business. We agree to provide to the
Certificate Registrar updated IRS Form W-8BEN, IRS Form
W-8IMY or IRS Form W-8ECI, as the case may be, and any
applicable successor IRS forms, or such other
certifications as the Certificate Registrar may
reasonably request, on or before the dates that any such
IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring
a change in the most recent IRS form of certification
furnished by it to the Certificate Registrar.
For this purpose, a "U.S. Tax Person" means a citizen or
resident of the United States for U.S. federal income tax
purposes, a corporation or partnership (except to the extent
provided in the applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State
thereof or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax
purposes, an estate
F-2A-2
the income of which is subject to U.S. federal income taxation
regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the
administration of such trust, and one or more U.S. Tax Persons
have the authority to control or substantial decisions of such
trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Tax
Persons).
Very truly yours,
________________________________________
(Transferee)
By: ____________________________________
Name: __________________________________
Title: _________________________________
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
________________________________________
(Nominee)
By: ____________________________________
Name: __________________________________
Title: _________________________________
F-2A-3
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates being
transferred (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) the Transferee [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar
___________________________
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2A-4
institution, which is supervised and examined by a state or federal
authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months preceding the
date of sale of the Transferred Certificates in the case of a U.S.
savings and loan association, and not more than 18 months preceding
such date of sale in the case of a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.) _____________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee did
not include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
F-2A-5
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee
used the cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
________________________________________
Print Name of Transferee
By: ____________________________________
Name: __________________________________
Title: _________________________________
Date: __________________________________
F-2A-6
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined
in Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
F-2A-7
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
Print Name of Transferee or Adviser
By: ____________________________________
Name: __________________________________
Title: _________________________________
IF AN ADVISER:
Print Name of Transferee
Date: __________________________________
F-2A-8
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2007-PWR18
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 27, 2007
(the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred
Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
[through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants)] in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2007 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association,
as a Master Servicer, as Certificate Administrator and as Tax Administrator,
Centerline Servicing Inc., as General Special Servicer, and LaSalle Bank
National Association, as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor that:
1. Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
F-2B-1
2. Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee, Certificate Administrator or the Certificate Registrar
is obligated so to register or qualify the Transferred Certificates, and (c)
neither the Transferred Certificates nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless it is (i)
registered pursuant to the Securities Act and registered or qualified pursuant
to any applicable state securities laws or (ii) sold or transferred in a
transaction which is exempt from such registration and qualification and the
Certificate Registrar has received (A) a certificate from the prospective
transferor substantially in the form attached as Exhibit F-1 to the Pooling and
Servicing Agreement and a certificate from the prospective transferee
substantially in the form attached either as Exhibit F-2A or as Exhibit F-2B to
the Pooling and Servicing Agreement; or (B) an Opinion of Counsel satisfactory
to the Certificate Administrator to the effect that, among other things, the
transfer may be made without registration under the Securities Act, together
with the written certification(s) as to the facts surrounding the transfer from
the prospective transferor and/or prospective transferee upon which such Opinion
of Counsel is based.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates, any security issued in exchange therefor
or in lieu thereof or any interest in the foregoing except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES OR BLUE
SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS
TERRITORIES AND POSSESSIONS. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION
OUTSIDE OF THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS
AND SALES MUST COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO
ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE
F-2B-2
OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE
OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the disposition
of the Transferred Certificates a violation of Section 5 of the Securities Act
or any state securities law or would require registration or qualification of
the Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized nor will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to the Transferred Certificates,
any interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) nature, performance and servicing of the Mortgage Loans, (d) the
Pooling and Servicing Agreement and the Trust Fund created pursuant thereto and
(e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning
of paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such an
investment and can afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
8. Check one of the following:
o We are a "U.S. Tax Person" and we have attached hereto
an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
o We are not a "U.S. Tax Person" and, under applicable law
in effect on the date hereof, no Taxes will be required
to be withheld by the
F-2B-3
Certificate Registrar (or its agent) with respect to
distributions to be made on the Certificates. We have
attached hereto (i) a duly executed IRS Form W8-BEN (or
successor form), which identifies us as the beneficial
owner of the Certificates and states that we are not a
U.S. Tax Person, (ii) IRS Form W-8IMY (and appropriate
attachments) or (iii) two duly executed copies of IRS
Form W-8ECI (or successor form), which identify us as
the beneficial owner of the Certificates and state that
interest and original issue discount on the Certificates
is, or is expected to be, effectively connected with a
U.S. trade or business. We agree to provide to the
Certificate Registrar updated IRS Form W-8BEN, IRS Form
W-8IMY or IRS Form W-8ECI, as the case may be, and any
applicable successor IRS forms, or such other
certifications as the Certificate Registrar may
reasonably request, on or before the dates that any such
IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring
a change in the most recent IRS form of certification
furnished by it to the Certificate Registrar.
For this purpose, a "U.S. Tax Person" means a citizen or
resident of the United States for U.S. federal income tax
purposes, a corporation or partnership (except to the extent
provided in the applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State
thereof or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax
purposes, an estate the income of which is subject to U.S.
federal income taxation regardless of its source, or a trust
if a court within the United States is able to exercise
primary supervision over the administration of such trust, and
one or more U.S. Tax Persons have the authority to control or
substantial decisions of such trust (or, to the extent
provided in applicable Treasury Regulations, certain trusts in
existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Tax Persons).
Very truly yours,
________________________________________
(Transferee)
By: ____________________________________
Name: __________________________________
Title: _________________________________
F-2B-4
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
________________________________________
(Nominee)
By: ____________________________________
Name:
Title:
F-2B-5
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE FOR CERTAIN
TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, Class
__ Certificates having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 27, 2007
(the "Closing Date") of $[__________] (the "Transferred
Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2007 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer, Xxxxx Fargo Bank
National Association, as a master servicer, as certificate administrator and as
tax administrator, Centerline Servicing Inc., as general special servicer, and
LaSalle Bank National Association, as trustee (the "Trustee"). All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to and agrees with you, and for the benefit
of the Depositor, the Trustee and the Certificate Registrar that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is
aware that the Transfer to it of the Transferor's interest in the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring such interest in the Transferred Certificates for
its own account or for the account of a Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the Securities
Act or registered or qualified under any applicable state securities laws,
(b) none of the Depositor, the Trustee, Certificate
F-2C-1
Administrator or the Certificate Registrar is obligated so to register or
qualify the Transferred Certificates, and (c) neither the Transferred
Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (i) registered pursuant
to the Securities Act and registered or qualified pursuant any applicable
state securities laws or (ii) sold or transferred in transactions which
are exempt from such registration and qualification and the Transferor
desiring to effect such transfer has received either (A) a certificate
from the prospective transferee substantially in the form attached either
as Exhibit F-2C to the Pooling and Servicing Agreement or (B) an opinion
of counsel to the effect that the transferee is a Qualified Institutional
Buyer and such transfer may be made without registration under the
Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing except in
compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS. ANY RESALE,
PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE
ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION
OUTSIDE OF THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH
OFFERS AND SALES MUST COMPLY WITH ALL APPLICABLE LAWS OF SUCH
JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A)
TO ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
F-2C-2
4. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and any
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement, and (e) all
related matters, that it has requested.
5. Check one of the following:
o We are a "U.S. Tax Person" and we have attached hereto
an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
o We are not a "U.S. Tax Person" and, under applicable law
in effect on the date hereof, no Taxes will be required
to be withheld by the Certificate Registrar (or its
agent) with respect to distributions to be made on the
Certificates. We have attached hereto (i) a duly
executed IRS Form W8-BEN (or successor form), which
identifies us as the beneficial owner of the
Certificates and states that we are not a U.S. Tax
Person, (ii) IRS Form W-8IMY (and appropriate
attachments) or (iii) two duly executed copies of IRS
Form W-8ECI (or successor form), which identify us as
the beneficial owner of the Certificates and state that
interest and original issue discount on the Certificates
is, or is expected to be, effectively connected with a
U.S. trade or business. We agree to provide to the
Certificate Registrar updated IRS Form W-8BEN, IRS Form
W-8IMY or IRS Form W-8ECI, as the case may be, and any
applicable successor IRS forms, or such other
certifications as the Certificate Registrar may
reasonably request, on or before the dates that any such
IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring
a change in the most recent IRS form of certification
furnished by it to the Certificate Registrar.
For this purpose, a "U.S. Tax Person" means a citizen or
resident of the United States for U.S. federal income tax
purposes, a corporation or partnership (except to the extent
provided in the applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State
thereof or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax
purposes, an estate the income of which is subject to U.S.
federal income taxation regardless of its source, or a trust
if a court within the United States is able to exercise
primary supervision over the administration of such trust, and
one or more U.S. Tax Persons have the authority to control or
substantial decisions of such trust (or, to the extent
provided in applicable Treasury Regulations, certain trusts in
existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Tax Persons).
F-2C-3
Very truly yours,
________________________________________
(Transferee)
By: ____________________________________
Name: __________________________________
Title: _________________________________
F-2C-4
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Bear Xxxxxxx Commercial Mortgage
Securities Inc. with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity acquiring interests in the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) [the Transferee] [each of the Transferee's equity owners]
owned and/or invested on a discretionary basis $______________________(2) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale for a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority
____________________________
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2C-5
having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is attached
hereto, as of a date not more than 16 months preceding the date of
sale of the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months preceding such
date of sale in the case of a foreign savings and loan association
or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
did not include (i) securities of issuers that are affiliated with such Person,
(ii) securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any such Person, the
Transferee used the cost of such securities to such Person, unless such Person
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market.
F-2C-6
Further, in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a third
party that is itself a "qualified institutional buyer" within the meaning of
Rule 144A, and the "qualified institutional buyer" status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's acquisition of any interest in of
the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. In addition, if the Transferee
is a bank or savings and loan as provided above, the Transferee agrees that it
will furnish to such parties any updated annual financial statements that become
available on or before the date of such acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
(Transferee)
By: ____________________________________
Name:
Title:
Date:
F-2C-7
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Bear Xxxxxxx Commercial Mortgage
Securities Inc. with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity acquiring interests in the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because the Transferee is part of a Family of Investment Companies (as
defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as defined
in Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked below,
the Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment
F-2C-8
Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but subject to
a repurchase agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more Transfers to the Transferee will be in reliance on Rule 144A.
____ ____
Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a third
party that is itself a "qualified institutional buyer" within the meaning of
Rule 144A, and the "qualified institutional buyer" status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's acquisition of any interest in the
Transferred Certificates will constitute a reaffirmation of this certification
by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
(Transferee or Adviser)
By: ________________________________
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
F-2C-9
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE FOR CERTAIN
TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, Class
__ Certificates having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 27, 2007
(the "Closing Date") of $[__________] (the "Transferred
Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of December 1, 2007, among Bear Xxxxxxx Commercial
Mortgage Securities Inc., as depositor, Prudential Asset Resources, Inc., as a
master servicer, Xxxxx Fargo Bank, National Association, as a master servicer,
as certificate administrator and as tax administrator, Centerline Servicing
Inc., as general special servicer, and LaSalle Bank National Association, as
trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that the Transferee is not a United States
Securities Person.
For purposes of this certification, "United States Securities Person"
means (i) any natural person resident in the United States, (ii) any partnership
or corporation organized or incorporated under the laws of the United States,
(iii) any estate of which any executor or administrator is a United States
Securities Person, other than any estate of which any professional fiduciary
acting as executor or administrator is a United States Securities Person if an
executor or administrator of the estate who is not a United States Securities
Person has sole or shared investment discretion with respect to the assets of
the estate and the estate is governed by foreign law, (iv) any trust of which
any trustee is a United States Securities Person, other than a trust of which
any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of
F-2D-1
insurance or banking and is subject to substantive insurance or banking
regulation, respectively, in the jurisdiction where located, (vi) any
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a United
States Securities Person, (vii) any discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States, other than one
held for the benefit or account of a non-United States Securities Person by a
dealer or other professional fiduciary organized, incorporated or (if an
individual) resident in the United States, or (viii) any partnership or
corporation if (a) organized or incorporated under the laws of any foreign
jurisdiction and (b) formed by a United States Securities Person principally for
the purpose of investing in securities not registered under the United States
Securities Act of 1933, as amended (the "Securities Act"), unless it is
organized or incorporated, and owned, by "accredited investors" (as defined in
Rule 501(a)) under the Securities Act, who are not natural persons, estates or
trusts; provided, however, that the International Monetary Fund, the
International Bank for Reconstruction and Development, the Inter-American
Development Bank, the Asian Development Bank, the African Development Bank, the
United Nations and their agencies, affiliates and pension plans, any other
similar international organizations, their agencies, affiliates and pension
plans shall not constitute United States Securities Persons.
Check one of the following:
o We are a "U.S. Tax Person" and we have attached hereto an Internal
Revenue Service ("IRS") Form W-9 (or successor form).
o We are not a "U.S. Tax Person" and, under applicable law in effect
on the date hereof, no Taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions
to be made on the Certificates. We have attached hereto (i) a duly
executed IRS Form W8-BEN (or successor form), which identifies us as
the beneficial owner of the Certificates and states that we are not
a U.S. Tax Person, (ii) IRS Form W-8IMY (and appropriate
attachments) or (iii) two duly executed copies of IRS Form W-8ECI
(or successor form), which identify us as the beneficial owner of
the Certificates and state that interest and original issue discount
on the Certificates is, or is expected to be, effectively connected
with a U.S. trade or business. We agree to provide to the
Certificate Registrar updated IRS Form W-8BEN, IRS Form W-8IMY or
IRS Form W-8ECI, as the case may be, and any applicable successor
IRS forms, or such other certifications as the Certificate Registrar
may reasonably request, on or before the dates that any such IRS
form or certification expires or becomes obsolete, or promptly after
the occurrence of any event requiring a change in the most recent
IRS form of certification furnished by it to the Certificate
Registrar.
F-2D-2
For this purpose, a "U.S. Tax Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in the applicable Treasury Regulations) created
or organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more U.S. Tax Persons have the
authority to control or substantial decisions of such trust (or, to the extent
provided in applicable Treasury Regulations, certain trusts in existence on
August 20, 1996 which are eligible to elect to be treated as U.S. Tax Persons).
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, _____
By: ____________________________________
As, or agent for, the beneficial
owner(s) of the Certificates to
which this certificate relates.
F-2D-3
EXHIBIT F-3A
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Right established under the Pooling and Servicing
Agreement, dated as of December 1, 2007 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc. as a master servicer and as
loan-specific specials servicer, Xxxxx Fargo Bank, National Association, as a
master servicer, as certificate administrator and as tax administrator,
Centerline Servicing Inc., as general special servicer, and LaSalle Bank
National Association, as trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Depositor, that:
1. The Transferor is the lawful owner of the right to receive the
Excess Servicing Fees with respect to the Serviced Mortgage Loans for which
_________________ is the applicable Master Servicer (the "Excess Servicing Fee
Right"), with the full right to transfer the Excess Servicing Fee Right free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of the Excess
Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other
similar security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to the Excess Servicing Fee Right, any interest in the Excess
Servicing Fee Right or any other similar security with any person in any manner,
(d) made any general solicitation with respect to the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security by means of general advertising or in any other manner, or (e) taken
any other action, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a
F-3A-1
distribution of the Excess Servicing Fee Right under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of the Excess
Servicing Fee Right a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the Excess
Servicing Fee Right pursuant to the Securities Act or any state securities laws.
Very truly yours,
By: ____________________________________
Name:
Title:
F-3A-2
EXHIBIT F-3B
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[APPLICABLE MASTER SERVICER]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Right established under the Pooling and Servicing
Agreement, dated as of December 1, 2007 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc., as a master servicer, Xxxxx
Fargo Bank, National Association, as a master servicer, as certificate
administrator and as tax administrator, Centerline Servicing Inc., as general
special servicer, and LaSalle Bank National Association, as trustee. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as the Depositor
and the applicable Master Servicer, that:
1. The Transferee is acquiring the right to receive Excess
Servicing Fees with respect to the Serviced Mortgage Loans as to
which __________________ is the applicable Master Servicer (the "Excess
Servicing Fee Right") for its own account for investment and not with a view to
or for sale or transfer in connection with any distribution thereof, in whole or
in part, in any manner which would violate the Securities Act of 1933, as
amended (the "Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Excess Servicing Fee
Right has not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b) none of
the Depositor, the Trustee, Certificate Administrator or the Certificate
Registrar is obligated so to register or qualify the Excess Servicing Fee Right,
and (c) the Excess Servicing Fee Right may not be resold or transferred unless
it is (i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration
F-3B-1
and qualification and (A) the Depositor has received a certificate from the
prospective transferor substantially in the form attached as Exhibit F-3A to the
Pooling and Servicing Agreement, and (B) each of the applicable Master Servicer
and the Depositor have received a certificate from the prospective transferee
substantially in the form attached as Exhibit F-3B to the Pooling and Servicing
Agreement.
3. The Transferee understands that it may not sell or otherwise
transfer the Excess Servicing Fee Right or any interest therein except in
compliance with the provisions of Section 3.11 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred the Excess
Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other
similar security to any person in any manner, (b) solicited any offer to buy or
accept a pledge, disposition or other transfer of the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to the Excess Servicing Fee Right, any interest in the Excess
Servicing Fee Right or any other similar security with any person in any manner,
(d) made any general solicitation with respect to the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security by means of general advertising or in any other manner, or (e) taken
any other action with respect to the Excess Servicing Fee Right, any interest in
the Excess Servicing Fee Right or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) above) would constitute
a distribution of the Excess Servicing Fee Right under the Securities Act, would
render the disposition of the Excess Servicing Fee Right a violation of Section
5 of the Securities Act or any state securities law or would require
registration or qualification of the Excess Servicing Fee Right pursuant
thereto. The Transferee will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to the Excess Servicing Fee Right, any interest in the Excess Servicing
Fee Right or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Excess Servicing Fee Right and any payments
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters that it has requested.
6. The Transferee is (a) a "qualified institutional buyer" within
the meaning of Rule 144A under the Securities Act or (b) an "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the Securities Act or an entity in which all of the equity owners come
within such paragraphs. The Transferee has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Excess Servicing Fee Right; the Transferee has
sought such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision; and the Transferee is able to bear the
economic risks of such investment and can afford a complete loss of such
investment.
F-3B-2
7. The Transferee agrees (i) to keep all information relating to
the Trust, the Trust Fund and the parties to the Pooling and Servicing
Agreement, and made available to it, confidential, (ii) not to use or disclose
such information in any manner which could result in a violation of any
provision of the Securities Act or would require registration of the Excess
Servicing Fee Right or any Certificate pursuant to the Securities Act, and (iii)
not to disclose such information, and to cause its officers, directors,
partners, employees, agents or representatives not to disclose such information,
in any manner whatsoever, in whole or in part, to any other Person other than
such holder's auditors, legal counsel and regulators, except to the extent such
disclosure is required by law, court order or other legal requirement or to the
extent such information is of public knowledge at the time of disclosure by such
holder or has become generally available to the public other than as a result of
disclosure by such holder; provided, however, that such holder may provide all
or any part of such information to any other Person who is contemplating an
acquisition of the Excess Servicing Fee Right if, and only if, such Person (x)
confirms in writing such prospective acquisition and (y) agrees in writing to
keep such information confidential, not to use or disclose such information in
any manner which could result in a violation of any provision of the Securities
Act or would require registration of the Excess Servicing Fee Right or any
Certificates pursuant to the Securities Act and not to disclose such
information, and to cause its officers, directors, partners, employees, agents
or representatives not to disclose such information, in any manner whatsoever,
in whole or in part, to any other Person other than such Persons' auditors,
legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Excess
Servicing Fee Right shall not have any rights under the Pooling and Servicing
Agreement except as set forth in Section 3.11(a) of the Pooling and Servicing
Agreement, and that the Excess Servicing Fee Rate may be reduced to the extent
provided in the Pooling and Servicing Agreement.
Very truly yours,
By: ____________________________________
Name:
Title:
F-3B-3
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES AND NON-INVESTMENT GRADE
CERTIFICATES HELD IN PHYSICAL FORM)
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2007-PWR18
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 27, 2007
(the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred
Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2007 among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
Depositor, Prudential Asset Resources, Inc., as a Master Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, Centerline Servicing Inc., as General Special
Servicer, and LaSalle Bank National Association, as Trustee. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you as Certificate Registrar, as follows
(check the applicable paragraph):
___ 1. The Transferee is neither (A) a retirement plan or other
employee benefit plan or arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment fund or
separate account in which such plans, accounts or arrangements are
invested, including an insurance company general account, that is subject.
to ERISA or Section 4975 of the Code (each, a "Plan"), nor (B) a Person
who is directly or indirectly purchasing the Transferred Certificates on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan;
or
G-1-1
___ 2. The Transferee is using funds from an insurance company
general account to acquire the Transferred Certificates, and the purchase
and holding of such Certificates by such Person are exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975
of the Code under Sections I and III of Prohibited Transaction Class
Exemption 95-60.
___ 3 (I) The Transferred Certificates are Class ___ Certificates,
an interest in which is being acquired by or on behalf of a Plan in
reliance on one of the individual prohibited transaction exemptions (as
amended) issued by the U.S. Department of Labor to Bear, Xxxxxxx & Co.
Inc. or Xxxxxx Xxxxxxx & Co. Incorporated (PTE 90-30 or 90-24), (II) such
Transferred Certificates have an investment grade rating on the date of
this letter and (III) (X) such Plan is an accredited investor as defined
in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) such Plan is
not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, any Mortgage Loan Seller, either Master Servicer,
any Special Servicer, any Sub-Servicer, any Person responsible for the
servicing of a Non-Trust-Serviced Pooled Mortgage Loan, any
Exemption-Favored Party or any Borrower with respect to any Mortgage Loan
or group of Mortgage Loans that represents more than 5% of the aggregate
unamortized principal balance of the Mortgage Loans determined on the date
of the initial issuance of the Certificates, or by an Affiliate of any
such Person, and (Z) such Transferee agrees that it will obtain from each
of its Transferees to which it transfers an interest in the Transferred
Certificates, a written certification to the effect described in Paragraph
1 above, a written certification to the effect described in Paragraph 2
above or a written representation that such Transferee satisfies the
requirements of the immediately preceding clauses (III) (X) and (Y) of
this Paragraph 3, together with a written agreement that such Transferee
will obtain from each of its Transferees a similar written certification
or representation.
Very truly yours,
[TRANSFEREE]
By: ____________________________________
Name:
Title:
G-1-2
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES HELD IN BOOK ENTRY FORM)
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, Class
____ Certificates [having an initial aggregate [Principal
Balance] [Notional Amount] as of December 27, 2007 (the
"Closing Date") of $__________] (the "Transferred
Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2007 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association,
as a Master Servicer, as Certificate Administrator and as Tax Administrator,
Centerline Servicing Inc., as General Special Servicer, and LaSalle Bank
National Association, as Trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as follows (check the applicable paragraph):
___ 1. The Transferee is neither (A) a retirement plan, an employee
benefit plan or other retirement arrangement, including an individual
retirement account or annuity, a Xxxxx plan or a collective investment
fund or separate account in which such plans, accounts or arrangements are
invested, including an insurance company general account, that is subject
to Section 406 of ERISA or Section 4975 of the Code (each, a "Plan"), nor
(B) a Person who is directly or indirectly purchasing an interest in the
Transferred Certificates on behalf of, as named fiduciary of, as trustee
of, or with assets of, a Plan;
___ 2. The Transferee is using funds from an insurance company
general account to acquire an interest in the Transferred Certificates,
and the purchase and holding of such interest by such Person are exempt
from the prohibited transaction provisions of
G-2-1
Section 406 of ERISA and Section 4975 of the Code under Sections I and III
of Prohibited Transaction Class Exemption 95-60; or
___ 3. (I) The Transferred Certificates are Class ___ Certificates,
an interest in which is being acquired by or on behalf of a Plan in
reliance on one of the individual prohibited transaction exemptions (as
amended) issued by the U.S. Department of Labor to Bear, Xxxxxxx & Co.
Inc. or Xxxxxx Xxxxxxx & Co. Incorporated (PTE 90-30 or 90-24), (II) such
Transferred Certificates have an investment grade rating on the date of
this letter and (III) (X) such Plan is an accredited investor as defined
in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) such Plan is
not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, any Mortgage Loan Seller, either Master Servicer,
any Special Servicer, any Sub-Servicer, any Person responsible for the
servicing of a Non-Trust-Serviced Pooled Mortgage Loan, any
Exemption-Favored Party or any Borrower with respect to any Mortgage Loan
or group of Mortgage Loans that represents more than 5% of the aggregate
unamortized principal balance of the Mortgage Loans determined on the date
of the initial issuance of the Certificates, or by an Affiliate of any
such Person, and (Z) such Transferee agrees that it will obtain from each
of its Transferees to which it transfers an interest in the Transferred
Certificates, a written certification to the effect described in Paragraph
1 above, a written certification to the effect described in Paragraph 2
above or a written representation that such Transferee satisfies the
requirements of the immediately preceding clauses (III) (X) and (Y) of
this Paragraph 3, together with a written agreement that such Transferee
will obtain from each of its Transferees a similar written certification
or representation.
[TRANSFEREE]
By: ____________________________________
Name:
Title:
G-2-2
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(A)(6)(A) AND 860E(E)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Series
2007-PWR18 (the "Certificates") issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of December 1, 2007, among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as Depositor, Prudential
Asset Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank,
National Association, as a Master Servicer, as Certificate
Administrator and as Tax Administrator, Centerline Servicing
Inc., as General Special Servicer, and LaSalle Bank National
Association, as Trustee
STATE OF )
) ss.: ____________________
COUNTY OF )
I, [ ], under penalties of perjury, declare that, to the best of my
knowledge and belief, the following representations are true, correct and
complete, and being first sworn, depose and say that:
1. I am the [ ] of [ ] (the "Purchaser"), on behalf of which I
have the authority to make this affidavit.
2. The Purchaser is acquiring Class R Certificates representing
[ ]% of the residual interest in each of the real estate mortgage investment
conduits (each, a "REMIC") designated as "REMIC I", "REMIC II" and "REMIC III",
respectively, relating to the Certificates for which an election has been or is
to be made under Section 860D of the Internal Revenue Code of 1986 (the "Code").
3. The Purchaser is a Permitted Transferee (as defined in the
Pooling and Servicing Agreement) and is not a "Disqualified Organization" (as
defined below), and that the Purchaser is not acquiring the Class R Certificates
for the account of, or as agent or nominee of, or with a view to the transfer of
direct or indirect record or beneficial ownership thereof, to a person that is
not a Permitted Transferee or to a Disqualified Organization. For the purposes
hereof, a Disqualified Organization is any of the following: (i) the United
States, (ii) any state or political subdivision thereof, (iii) any foreign
government, (iv) any international organization, (v) any agency or
instrumentality of any of the foregoing, (vi) any tax-exempt organization (other
than a cooperative described in Section 521 of the Code) which is exempt from
the tax imposed by Chapter 1 of the Code unless such organization is subject to
the tax imposed by Section 511
H-1-1
of the Code, (vii) any organization described in Section 1381(a)(2)(C) of the
Code, or (viii) any other entity designated as a "disqualified organization" by
relevant legislation amending the REMIC Provisions and in effect at or proposed
to be effective as of the time of determination. In addition, a corporation will
not be treated as an instrumentality of the United States or of any state or
political subdivision thereof if all of its activities are subject to tax
(except for the Federal Home Loan Mortgage Corporation) and a majority of its
board of directors is not selected by such governmental unit. The terms "United
States" and "international organization" shall have the meanings set forth in
Section 7701 of the Code.
4. The Purchaser is not a foreign permanent establishment or a
fixed base (within the meaning of any applicable income tax treaty between the
United States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the Class R
Certificates to be attributable to a foreign permanent establishment or fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code
would impose a substantial tax on the transferor or, in certain circumstances,
on an agent for the transferee, with respect to any transfer of any interest in
any Class R Certificates to a Disqualified Organization.
7. No purpose of the acquisition of the Class R Certificates is
to impede the assessment or collection of tax.
8. [Check the statement that applies]
o If the Transferor requires the safe harbor under Treasury Regulation
Section 1.860E-1 to apply:
____ a) In accordance with Treasury Regulation Section 1.860E-1,
the Purchaser (i) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury Regulations, as to which the income of Class R
Certificates will only be subject to taxation in the United States, (ii) has,
and has had in each of its two preceding fiscal years, gross assets for
financial reporting purposes (excluding any obligation of a person related to
the transferee within the meaning of Section 1.860E-1(c)(6)(ii) of the Treasury
Regulations or any other assets if a principal purpose for holding or acquiring
such asset is to satisfy this condition) in excess of $100 million and net
assets of $10 million, and (iii) hereby agrees only to transfer the Certificate
to another corporation meeting the criteria set forth in Treasury Regulation
Section 1.860E-1;
or
_____ b) The Purchaser is a United States Tax Person and the
consideration paid to the Purchaser for accepting the Class R Certificates is
greater than the present value of the anticipated net federal income taxes and
tax benefits ("Tax Liability Present Value") associated
H-1-2
with owning such Certificates, with such present value computed using a discount
rate equal to the "Federal short-term rate" prescribed by Section 1274 of the
Code as of the date hereof or, to the extent it is not, if the Transferee has
asserted that it regularly borrows, in the ordinary course of its trade or
business, substantial funds from unrelated third parties at a lower interest
rate than such applicable federal rate and the consideration paid to the
Purchaser is greater than the Tax Liability Present Value using such lower
interest rate as the discount rate, the transactions with the unrelated third
party lenders, the interest rate or rates, the date or dates of such
transactions, and the maturity dates or, in the case of adjustable rate debt
instruments, the relevant adjustment dates or periods, with respect to such
borrowings, are accurately stated in Exhibit A to this letter.
o If the Transferor does not require the safe harbor under Treasury
Regulation Section 1.860E-1 to apply:
_____ c) The Purchaser is a "United States person" as defined in
Section 7701(a) of the Code and the regulations promulgated thereunder (the
Purchaser's U.S. taxpayer identification number is __________). The Purchaser is
not classified as a partnership under the Code (or, if so classified, all of its
beneficial owners are United States persons).
9. The Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Class R Certificates
as they become due.
10. The Purchaser understands that it may incur tax liabilities
with respect to the Class R Certificates in excess of any cash flows generated
by such Certificates.
11. The Purchaser will not transfer the Class R Certificates to
any person or entity as to which the Purchaser has not received an affidavit
substantially in the form of this affidavit or to any person or entity as to
which the Purchaser has actual knowledge that the requirements set forth in
paragraphs 3, 4, 5, 7 or 9 hereof are not satisfied, or to any person or entity
with respect to which the Purchaser has not (at the time of such transfer)
satisfied the requirements under the Code to conduct a reasonable investigation
of the financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the Code).
12. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the prohibition
against transferring the Class R Certificates to a Disqualified Organization, an
agent thereof or a person that does not satisfy the requirements of paragraphs 7
and 9.
13. The Purchaser consents to the designation of the Tax
Administrator as the agent of the Tax Matters Person of the REMIC I, REMIC II
and REMIC III pursuant to Section 10.01(d) of the Pooling and Servicing
Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
H-1-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this ___ day of
________________.
By: ____________________________________
Name:
Title:
Personally appeared before me [ ] known or proved to me to be the
same person who executed the foregoing instrument and to be a [ ] of the
Purchaser, and acknowledged to me that he/she executed the same as his/her free
act and deed and as the free act and deed of the Purchaser.
Subscribed and sworn before me this
____ day of _______________.
____________________________________________
Notary Public
H-1-4
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2007-PWR18
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, Class R
Certificates, evidencing a ____% Percentage Interest in such
Class (the "Residual Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2007 among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
Depositor, Prudential Asset Resources, Inc., as a Master Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, Centerline Servicing Inc., as General Special
Servicer, and LaSalle Bank National Association, as Trustee. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you as Certificate Registrar, as follows:
1. No purpose of the Transferor relating to the transfer of the
residual interest Certificates by the Transferor to the Transferee is or will be
to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered
to you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit H-1. The Transferor does not know or believe
that any representation contained therein is false.
H-2-1
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or the
beneficial owners of the Transferee if the Transferee is classified as a
partnership under the Code) as contemplated by Treasury Regulation Section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has
determined that the Transferee has historically paid its debts as they became
due and has found no significant evidence to indicate that the Transferee will
not continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may not be
respected for United States income tax purposes (and the Transferor may continue
to be liable for United States income taxes associated therewith) unless the
Transferor has conducted such an investigation.
Very truly yours,
By: ____________________________________
(Transferor)
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
DBRS, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Commercial Mortgage Surveillance Group
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.25 of the
Pooling and Servicing Agreement, dated as of December 1, 2007 (the "Agreement")
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as Depositor, Prudential
Asset Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National
Association, as a Master Servicer, as Certificate Administrator and as Tax
Administrator, Centerline Servicing Inc., as General Special Servicer, the
undersigned as Trustee, and relating to Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-PWR18 (the "Certificates"). Capitalized terms used but not otherwise
defined herein shall have respective meanings assigned to them in the Agreement.
Notice is hereby given that ____________________________________ has
designated ________________________________ to serve as [the General Special
Servicer][the Loan-Specific Special Servicer for the _______ Loan Group] under
the Agreement.
The designation of ____________________________ as Special Servicer
will become final if certain conditions are met and each Rating Agency delivers
to LaSalle Bank National Association, the trustee under the Agreement (the
"Trustee"), written confirmation that
I-1-1
if the person designated to become [the General Special Servicer][the
Loan-Specific Special Servicer for the _______ Loan Group] were to serve as
such, such event would not result in an Adverse Rating Event with respect to any
Class of the Certificates. Accordingly, such confirmation is hereby requested as
soon as possible.
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION
____________________________________
Name:
Title:
Receipt acknowledged:
STANDARD & POOR'S RATINGS SERVICES,
A DIVISION OF THE XXXXXX-XXXX COMPANIES, INC.
By: ___________________________________
Name:
Title:
Date:
FITCH, INC.
By: ___________________________________
Name:
Title:
Date:
DBRS, INC.
By: ___________________________________
Name:
Title:
Date:
I-1-2
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[CERTIFICATE ADMINISTRATOR]
[TAX ADMINISTRATOR]
[TRUSTEE]
[MASTER SERVICERS]
[DEPOSITOR]
[SPECIAL SERVICER]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18
Ladies and Gentlemen:
Pursuant to Section 3.25 of the Pooling and Servicing Agreement,
dated as of December 1, 2007 relating to Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-PWR18 (the "Agreement"), the undersigned hereby agrees with all the other
parties to the Agreement that the undersigned shall serve as [the General
Special Servicer][the Loan-Specific Special Servicer for the _______ Loan Group]
under the Agreement. The undersigned hereby acknowledges and agrees that, as of
the date hereof, it is and shall be a party to the Agreement and bound thereby
to the full extent indicated therein in the capacity of [the General Special
Servicer][the Loan-Specific Special Servicer for the _______ Loan Group]. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 2.07 of the Agreement, with the following
corrections with respect to type of entity and jurisdiction of organization:
____________________. Capitalized terms used but not otherwise defined herein
shall have respective meanings assigned to them in the Agreement.
________________________________________
By: ____________________________________
Name:
Title:
I-2-1
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SECURED PARTY:
LaSalle Bank National Association
as Trustee for the registered holders of
Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
Bear Xxxxxxx Commercial Mortgage Securities Inc., 2007-PWR18
TEXT:
See Exhibit I attached hereto and made a part hereof.
A sale by the Seller/Debtor of, or a grant by the Seller/Debtor of a security
interest in, any collateral described in this financing statement will violate
the rights of the Buyer/Secured Party listed in Item 3 above.
J-1
EXHIBIT I TO EXHIBIT J
SELLER/DEBTOR:
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BUYER/SECURED PARTY:
LaSalle Bank National Association
as Trustee for the registered holders of
Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
Bear Xxxxxxx Commercial Mortgage Securities Inc., 2007-PWR18
DESCRIPTION OF THE PROPERTY COVERED:
This Exhibit I is attached to and incorporated in a financing
statement pertaining to Bear Xxxxxxx Commercial Mortgage Securities Inc. as
depositor (referred to as the "Debtor" for the purpose of this financing
statement only), and LaSalle Bank National Association as trustee for the
holders of the Series 2007-PWR18 Certificates (referred to as the "Secured
Party" for purposes of this financing statement only), under that certain
Pooling and Servicing Agreement, dated as of December 1, 2007 (the "Pooling and
Servicing Agreement"), among the Debtor as depositor, the Secured Party as
trustee, Prudential Asset Resources, Inc. as a master servicer (in such
capacity, a "Master Servicer"), Xxxxx Fargo Bank, National Association as a
master servicer (in such capacity, a "Master Servicer"), as certificate
administrator and as tax administrator and Centerline Servicing Inc. as general
special servicer (in such capacity, a "Special Servicer"), relating to the
issuance of the Debtor's Commercial Mortgage Pass-Through Certificates, Series
2007-PWR18 (collectively, the "Series 2007-PWR18 Certificates"). Capitalized
terms used herein and not defined shall have the respective meanings given to
them in the Pooling and Servicing Agreement. The attached financing statement
covers all of the Debtor's right (including the power to convey title thereto),
title and interest in and to the Trust Fund created pursuant to the Pooling and
Servicing Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a
borrower (the "Mortgage Notes") with respect to the mortgage
loans (the "Mortgage Loans") listed on the Pooled Mortgage
Loan Schedule, as the same may be updated from time to time,
which Pooled Mortgage Loan Schedule as of the Closing Date is
attached hereto as Exhibit A;
2. The related mortgages, deeds of trust or other similar
instruments securing such Mortgage Notes (the "Mortgages");
J-2
3. With respect to each Mortgage Note and each Mortgage, each
other legal, credit and servicing document related to such
Mortgage Note and Mortgage (collectively, with such related
Mortgage Note and Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by each of the Master
Servicers pursuant to the Pooling and Servicing Agreement, (b)
all funds from time to time on deposit in each Collection
Account, (c) the investments of any such funds consisting of
securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments
of principal and interest and the right to enforce the related
payment obligations, arising from or under any such
investments;
5. All REO Property;
6. (a) the REO Account(s) required to be maintained by the
Special Servicers pursuant to the Pooling and Servicing
Agreement, (b) all funds from time to time on deposit in the
REO Account, (c) the investments of any such funds consisting
of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments
of principal and interest and the right to enforce the related
payment obligations, arising from or under any such
investments;
7. (a) the Servicing Account(s) and Reserve Account(s) required
to be maintained by the Master Servicers or Special Servicers
pursuant to the Pooling and Servicing Agreement, and (b) all
funds from time to time on deposit in the Servicing Account(s)
and Reserve Account(s);
8. (a) the Excess Liquidation Proceeds Account(s) and the
Interest Reserve Account(s) required to be maintained by the
Certificate Administrator pursuant to the Pooling and
Servicing Agreement, and (b) all funds from time to time on
deposit in the Excess Liquidation Proceeds Account(s) and the
Interest Reserve Account(s);
9. (a) the Distribution Account required to be maintained by the
Certificate Administrator on behalf of the Buyer/Secured Party
pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c)
the investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general
intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of
principal and interest and the right to enforce the related
payment obligations, arising from or under any such
investments;
J-3
10. The rights of the Seller/Debtor under Sections 2, 3, 4 (other
than Section 4(c)) and 5 (and, to the extent related to the
foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18) of
each Pooled Mortgage Loan Purchase Agreement;
11. All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be
maintained pursuant to the Mortgage Loan Documents and the
Pooling and Servicing Agreement, transferred to the Trust and
to be serviced by the Master Servicers or Special Servicers;
and
12. All income, payments, products and proceeds of any of the
foregoing, together with any additions thereto or
substitutions therefor.
THE SELLER/DEBTOR AND THE BUYER/SECURED PARTY INTEND THE TRANSACTIONS
CONTEMPLATED BY THE POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE
OF THE INTEREST IN THE MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER
MORTGAGE LOAN DOCUMENTS, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE
NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS
NOT AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE OR
THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST
OF THE BUYER/SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER
MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION
THAT ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN
INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN
THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE
JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A
CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY
INTEREST OF THE BUYER/SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT,
INCLUDING, WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND
INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING
FROM OR UNDER ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION
(INCLUDING, WITHOUT LIMITATION, ANY PERMITTED INVESTMENT). WITH RESPECT TO
THE FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY
ASSERTIONS BY THIRD PARTIES.
A SALE BY THE SELLER/DEBTOR OF, OR A GRANT BY THE SELLER/DEBTOR OF A SECURITY
INTEREST IN, ANY COLLATERAL DESCRIBED IN THIS
J-4
FINANCING STATEMENT WILL VIOLATE THE RIGHTS OF THE BUYER/SECURED PARTY.
J-5
EXHIBIT A TO EXHIBIT I TO EXHIBIT J
SCHEDULE OF MORTGAGE LOANS
[Schedules I-A, I-B, I-C, I-D, I-E and I-F are to be attached at this location
in the UCC exhibit]
J-6
EXHIBIT K-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration (CMBS)
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18
In accordance with the Pooling and Servicing Agreement, dated as of
December 1, 2007 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as Depositor, Prudential Asset Resources,
Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association, as a Master
Servicer, as Certificate Administrator and as Tax Administrator, Centerline
Servicing Inc., as General Special Servicer, and LaSalle Bank National
Association, as Trustee, with respect to the Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-PWR18 (the "Certificates"), the undersigned hereby certifies and agrees as
follows:
1. The undersigned is a [holder] [beneficial holder] of
$___________ aggregate [Certificate Principal
Balance/Certificate Notional Amount] of the Class ____
Certificates.
2. The undersigned is requesting access to the following
information (the "Information"):
___ The information on the Master Servicer's internet
website pursuant to Section 4.02(f) of the Pooling and
Servicing Agreement.
___ The information on the Certificate Administrator's
internet website pursuant to Section 4.02(a) of the
Pooling and Servicing Agreement.
___ The information identified on the schedule attached
hereto pursuant to Section 8.12(b) of the Pooling and
Servicing Agreement.
3. In consideration of the Certificate Administrator's disclosure
to the undersigned of the Information, the undersigned will
keep the Information confidential (except from such outside
persons as are assisting it in
K-1-1
evaluating the Information), and such Information will not,
without the prior written consent of the Certificate
Administrator, be disclosed by the undersigned or by its
officers, directors, partners employees, agents or
representatives in any manner whatsoever, in whole or in part;
provided that the undersigned may provide all or any part of
the Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest
therein, but only if such person or entity confirms in writing
such ownership interest or prospective ownership interest and
agrees to keep it confidential; and provided, further, that
the undersigned may provide all or any part of the Information
to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision
of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, or
would require registration of any Non-Registered Certificate
pursuant to Section 5 of the Securities Act.
All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_______________________________________
[CERTIFICATEHOLDER] [BENEFICIAL
HOLDER OF A CERTIFICATE]
By: ____________________________________
Name:
Title:
Telephone No.:
K-1-2
EXHIBIT K-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration (CMBS)
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18
In accordance with the Pooling and Servicing Agreement, dated as of
December 1, 2007 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as Depositor, Prudential Asset Resources,
Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association, as a Master
Servicer, as Certificate Administrator and as Tax Administrator, Centerline
Servicing Inc., as General Special Servicer, and LaSalle Bank National
Association, as Trustee, with respect to the Bear Xxxxxxx Commercial Mortgage
Securities Inc. Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class
____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information") for use in evaluating such
possible investment:
___ The information on the Master Servicer's internet
website pursuant to Section 4.02(f) of the Pooling and
Servicing Agreement.
___ The information on the Certificate Administrator's
internet website pursuant to Section 4.02(a) of the
Pooling and Servicing Agreement.
___ The information identified on the schedule attached
hereto pursuant to Section 8.12(b) of the Pooling and
Servicing Agreement.
3. In consideration of the Certificate Administrator's disclosure
to the undersigned of the Information, the undersigned will
keep the Information confidential (except from such outside
persons as are assisting it in making the investment decision
described in paragraph 1), and such
K-2-1
Information will not, without the prior written consent of the
Certificate Administrator, be disclosed by the undersigned or
by its officers, directors, partners employees, agents or
representatives in any manner whatsoever, in whole or in part;
provided that in the event the undersigned purchases any
Certificate or any interest in any Certificate, the
undersigned may provide all or any part of the Information to
any other person or entity that holds or is contemplating the
purchase of any Certificate or interest therein, but only if
such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep
it confidential; and provided, further, that the undersigned
may provide all or any part of the Information to its
auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision
of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, or
would require registration of any Non-Registered Certificate
pursuant to Section 5 of the Securities Act.
All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By: ____________________________________
Name:
Title:
Telephone No.:
K-2-2
EXHIBIT L
FORM OF POWER OF ATTORNEY BY TRUSTEE
RECORDING REQUESTED BY:
[NAME OF MASTER SERVICER
OR SPECIAL SERVICER]
AND WHEN RECORDED MAIL TO:
[ADDRESS OF MASTER SERVICER OR
SPECIAL SERVICER]
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL ASSOCIATION, as
trustee for holders of the Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of December 1, 2007
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint [NAME OF MASTER SERVICER OR SPECIAL SERVICER], as [Master Servicer]
[Special Servicer] under the Pooling and Servicing Agreement ("[SHORT NAME]"),
as its true and lawful attorney-in-fact for it and in its name, place, stead and
for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable [SHORT NAME] to service and administer the mortgage loans identified on
Schedule __ to the Pooling and Servicing Agreement in connection with the
performance by [SHORT NAME] of its duties as [Master Servicer] [Special
Servicer] under the Pooling and Servicing Agreement, giving and granting unto
[SHORT NAME] full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that [SHORT NAME] shall lawfully do or
cause to be done by virtue hereof.
L-1
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this _____ day of _________, 20__.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for the holder of Bear
Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-PWR18
By: ___________________________________
Name:__________________________________
Title:_________________________________
L-2
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ________________________________ before me, _________________________________
Date Name and Title of Officer (i.e.,
Your Name, Notary Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
____________________________________
Signature of Notary
(Affix seal in the above blank space)
X-0
XXXXXXX X-0
FORM OF XXXXXXXX-XXXXX CERTIFICATION
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, issued
pursuant to the Pooling and Servicing Agreement dated as of
December 1, 2007 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor, Prudential Asset Resources, Inc., as a master
servicer, Xxxxx Fargo Bank, National Association, as a master
servicer, as certificate administrator and as tax
administrator, Centerline Servicing Inc., as general special
servicer, and LaSalle Bank National Association, as trustee.
I, [identity of certifying individual], the senior officer in charge of
securitization for the Depositor, hereby certify that:
1. I have reviewed this report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report on
Form 10-K of Bear Xxxxxxx Commercial Mortgage Securities Trust 2007-PWR18 (the
"Exchange Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statement(s)
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act Periodic Reports, the servicer(s) [has/have]
fulfilled [its/their] obligations under the Pooling and Servicing Agreement or
the applicable sub-servicing agreement or primary servicing agreement; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed securities
required to be included in this report in accordance with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an
exhibit to this report, except as otherwise disclosed in this report. Any
material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
M-1-1
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: (a) Xxxxx
Fargo Bank, National Association, as a Master Servicer; (b) Prudential Asset
Resources, Inc., as a Master Servicer; (c) Centerline Servicing Inc., as a
Special Servicer; (d) Xxxxx Fargo Bank, National Association, as Certificate
Administrator; (e) Principal Global Investors, LLC, as a Primary Servicer; (f)
Nationwide Life Insurance Company, as a Primary Servicer; (g) LaSalle Bank
National Association, as Trustee; and (h) [names of sub-servicers].
Dated: _______________________
By: ____________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
XXXX XX XXXXXXXX-XXXXX BACKUP CERTIFICATION
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18, issued
pursuant to the Pooling and Servicing Agreement dated as of
December 1, 2007 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor, Prudential Asset Resources, Inc., as a master
servicer, Xxxxx Fargo Bank, National Association, as a master
servicer, as certificate administrator and as tax
administrator, Centerline Servicing Inc., as general special
servicer, and LaSalle Bank National Association, as trustee,
[./; and] [the Subservicing Agreement, dated as of (the
"Subservicing Agreement") between [identify parties].
I, [identity of certifying individual], hereby certify to the Depositor [and the
Master Servicer] and [its][their] officers, directors and Affiliates
(collectively, the "Certification Parties") as follows, with the knowledge and
intent that the Certification Parties will rely on this Certification in
connection with the certification concerning the Trust to be signed by an
officer of the Depositor and submitted to the Securities and Exchange Commission
pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I have reviewed the report of information provided by the [Master
Servicer/ Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
for inclusion in the Annual Report on Form 10-K for the period ended December
31, 200[ ] ("Form 10-K") relating to the Trust and all reports of information by
the [Master Servicer/Special Servicer/Paying Agent/Trustee/Primary
Servicer/Subservicer] for inclusion in the Asset-Backed Issuer Distribution
Reports on Form 10-D ("Form 10-D") relating to the Trust (such reports by the
[Master Servicer/Special Servicer/Paying Agent/Trustee/Primary
Servicer/Subservicer], collectively, the "[Master Servicer/Special
Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports");
2. Based on my knowledge, the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the [Master Servicer/Special
Servicer/Paying Agent/Trustee/Primary
M-2-1
Servicer/Subservicer] Periodic Reports under the provisions of the [Pooling and
Servicing/Primary Servicing/Subservicing] Agreement for the calendar year
preceding the date of the Form 10-K is included in the [Master Servicer/Special
Servicer/Certificate Administrator/Trustee/Primary Servicer/Subservicer]
Periodic Reports;
4. Based on my knowledge and the compliance review conducted in
preparing the [Master Servicer/Special Servicer/Certificate
Administrator/Trustee/Primary Servicer/Subservicer]'s compliance statement under
the [Pooling and Servicing/Primary Servicing/Subservicing] Agreement in
connection with Item 1123 of Regulation AB, and except as disclosed in the
[Master Servicer/Special Servicer/Certificate Administrator/Trustee/Primary
Servicer/Subservicer] Periodic Reports, the [Master Servicer/Special
Servicer/Certificate Administrator/Trustee/Primary Servicer/Subservicer] has
fulfilled its obligations under the [Pooling and Servicing/Primary
Servicing/Subservicing] Agreement; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed securities
required under the [Pooling and Servicing/Primary Servicing/Subservicing]
Agreement to be included in this certification in connection with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18, have been included as an
exhibit to this certification, except as otherwise disclosed in this
certification. Any material instances of noncompliance described in such reports
have been disclosed in this certification.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name of certificate administrator or other similar party; name of
depositor; name of master servicer; name of special servicer; name of primary
servicer; name of subservicer].
This Certification is being signed by me as an officer of the [Master
Servicer/Special Servicer/Certificate Administrator/Trustee/Primary
Servicer/Subservicer] responsible for reviewing the activities performed by the
[Master Servicer/Special Servicer/Certificate Administrator/Trustee/Primary
Servicer/Subservicer] under the [Pooling and Servicing/Primary
Servicing/Subservicing] Agreement.
Dated: ____________________________
_______________________________________
Name:
Title:
M-2-2
EXHIBIT N
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
[PARTIES TO POOLING AND SERVICING AGREEMENT]
[POOLED MORTGAGE LOAN SELLERS]
[CONTROLLING CLASS REPRESENTATIVE]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-PWR18
Ladies and Gentlemen:
In accordance with Section 2.02(b) of that certain Pooling and
Servicing Agreement dated as of December 1, 2007 (the "Pooling and Servicing
Agreement") pursuant to which the certificates of the above-referenced series
were issued, the undersigned hereby certifies that, with respect to each
Original Pooled Mortgage Loan subject to the Pooling and Servicing Agreement,
and subject to the exceptions noted in the schedule of exceptions attached
hereto, that: (i) the original Mortgage Note specified in clause (i) of the
definition of "Mortgage File" and all allonges thereto, if any (or a copy of
such Mortgage Note, together with a lost note affidavit and indemnity certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii), (iii), (iv), (viii) (without regard to the
verification of the effective date with respect to a title policy or the date of
funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan
Schedule specifies that a material portion of the interest of the Borrower in
the related Mortgaged Property consists of a leasehold interest) and (xx)
(solely in the case of the Pooled Mortgage Loans secured by the Mortgaged
Properties identified on the Pooled Mortgage Loan Schedule as "RRI Portfolio",
"Marriott Houston Westchase", "Norfolk Marriott", "Trumbull Marriott", "HRC
Portfolio 3", "HRC Xxxxxxxxx 0", "XXX Portfolio 2", "Candlewood Suites
Northwoods Mall", "Clarion Inn & Suites Orlando", "Holiday Inn Express Hotel",
"Xxxxxxx Inn - Best Western", "Hampton Inn - Indianapolis", "Comfort Inn - Mars,
PA", "Holiday Inn Express - San Antonio Airport North" and "Comfort Suites -
Airport North", of the definition of "Mortgage File" have been received by it or
a Custodian on its behalf; (ii) if such report is due more than 180 days after
the Closing Date, the recordation/filing contemplated by Section 2.01(e) has
been completed (based solely on receipt by the Trustee of the particular
recorded/filed documents or an appropriate receipt of recording/filing
therefor); (iii) all documents received by the undersigned or any Custodian with
respect to such Pooled Mortgage Loan have been reviewed by the undersigned or by
such Custodian on its behalf and (A) appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Borrower), (B) appear to have been executed and (C) purport to
relate to such Pooled Mortgage Loan; and (iv) based on the examinations referred
to in Sections 2.02(a) and 2.02(b) of the Pooling and Servicing Agreement and
only as to the foregoing documents, the information set forth in the Pooled
Mortgage Loan Schedule with respect to the items specified in clause (iii)(A)
and clause (vi) of the definition of
N-1
"Pooled Mortgage Loan Schedule" accurately reflects the information set forth in
the related Mortgage File.
Capitalized terms used but not defined herein shall have the
meanings given them in the Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: ____________________________________
Name:
Title:
N-2
EXHIBIT O
FORM OF DEFEASANCE CERTIFICATION
FOR ANY LOAN THAT IS NOT AMONG TEN (10) LARGEST LOANS IN POOL, WITH OUTSTANDING
BALANCE OF (A) $35,000,000 OR LESS, OR (B) LESS THAN 5% OF OUTSTANDING POOL
BALANCE, WHICHEVER IS LESS
To: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: ______________
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
DBRS, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Commercial Mortgage Surveillance Group
From: [PAR] [WFB], in its capacity as a Master Servicer (a "Master Servicer")
under the Pooling and Servicing Agreement dated as of December 1, 2007
(the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc. as Depositor, Prudential Asset Resources, Inc. as
a Master Servicer, Xxxxx Fargo Bank, National Association as a Master
Servicer, as Certificate Administrator and as Tax Administrator,
Centerline Servicing Inc. as General Special Servicer and LaSalle Bank
National Association as Trustee.
Date: _________, 20___
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18
Mortgage loan (the "Mortgage Loan") identified by loan number _____ on the
Pooled Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified on
the Pooled Mortgage Loan Schedule by the following
names:____________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we hereby:
O-1
1. Notify you that the Borrower has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan,
of the type checked below:
____ a full defeasance of the payments scheduled to be
due in respect of the entire Stated Principal
Balance of the Mortgage Loan; or
____ a partial defeasance of the payments scheduled to
be due in respect of a portion of the Stated
Principal Balance of the Mortgage Loan that
represents ___% of the entire Stated Principal
Balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of
$____________ or _______% of the entire Stated
Principal Balance;
2. Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A
hereto, which exceptions the Master Servicer has determined,
consistent with the Servicing Standard, will have no material
adverse effect on the Mortgage Loan or the defeasance
transaction:
a. The Mortgage Loan Documents permit the defeasance, and
the terms and conditions for defeasance specified
therein were satisfied in all material respects in
completing the defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that
(i) constitute "government securities" as defined in
Section 2(a)(16) of the Investment Company Act of 1940
as amended (15 U.S.C. 80A1), (ii) are listed as
"Qualified Investments for `AAA' Financings" under
Paragraphs 1, 2 or 3 of "Cash Flow Approach" in Standard
& Poor's Public Finance Criteria 2000, as amended to the
date of the defeasance, (iii) are rated `AAA' by
Standard & Poor's, (iv) if they include a principal
obligation, the principal due at maturity cannot vary or
change, and (v) are not subject to prepayment, call or
early redemption. Such securities have the
characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
d. The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance
with the Servicing Standard) that the defeasance will
not result in an Adverse REMIC Event.
O-2
e. The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance
Obligor") as to which one of the statements checked
below is true:
____ the related Borrower was a Single-Purpose Entity
(as defined in Standard & Poor's Structured
Finance Ratings Real Estate Finance Criteria, as
amended to the date of the defeasance (the "S&P
Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the
defeasance collateral and real property securing
Mortgage Loans included in the pool;
____ the related Borrower designated a Single-Purpose
Entity (as defined in the S&P Criteria) to own the
defeasance collateral; or
____ the Master Servicer designated a Single-Purpose
Entity (as defined in the S&P Criteria)
established for the benefit of the Trust to own
the defeasance collateral.
f. The Master Servicer received a broker or similar
confirmation of the credit, or the accountant's letter
described below contained statements that it reviewed a
broker or similar confirmation of the credit, of the
defeasance collateral to an Eligible Account (as defined
in the S&P Criteria) in the name of the Defeasance
Obligor, which account is maintained as a securities
account by the Trustee acting as a securities
intermediary.
g. As securities intermediary, the Trustee is obligated to
make the scheduled payments on the Mortgage Loan from
the proceeds of the defeasance collateral directly to
the Master Servicer's collection account in the amounts
and on the dates specified in the Mortgage Loan
Documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan
amount for the real property defeased, increased by any
defeasance premium specified in the Mortgage Loan
Documents (the "Scheduled Payments").
h. The Master Servicer received from the Borrower written
confirmation from a firm of independent certified public
accountants, who were approved by the Master Servicer in
accordance with the Servicing Standard, stating that (i)
revenues from principal and interest payments made on
the defeasance collateral (without taking into account
any earnings on reinvestment of such revenues) will be
sufficient to timely pay each of the Scheduled Payments
after the defeasance including the payment in full of
the Mortgage Loan (or the allocated portion
O-3
thereof in connection with a partial defeasance) on its
Maturity Date (or, in the case of an ARD Mortgage Loan,
on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral
will be applied to make Scheduled Payments within four
(4) months after the date of receipt, and (iii) interest
income from the defeasance collateral to the Defeasance
Obligor in any calendar or fiscal year will not exceed
such Defeasance Obligor's interest expense for the
Mortgage Loan (or the allocated portion thereof in a
partial defeasance) for such year.
i. The Master Servicer received opinions from counsel, who
were approved by the Master Servicer in accordance with
the Servicing Standard, that (i) the agreements executed
by the Borrower and/or the Defeasance Obligor in
connection with the defeasance are enforceable against
them in accordance with their terms except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the
enforcement of creditor's rights generally, and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity
or at law), and (ii) the Trustee will have a perfected,
first priority security interest in the defeasance
collateral described above.
j. The agreements executed in connection with the
defeasance (i) permit reinvestment of proceeds of the
defeasance collateral only in Permitted Investments (as
defined in the S&P Criteria), (ii) permit release of
surplus defeasance collateral and earnings on
reinvestment to the Defeasance Obligor or the Borrower
only after the Mortgage Loan has been paid in full, if
any such release is permitted, (iii) prohibit any
subordinate liens against the defeasance collateral, and
(iv) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance
Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and the
securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor.
k. The Mortgage Loan is not among the ten (10) largest
loans in the Mortgage Pool. The entire Stated Principal
Balance of the Mortgage Loan as of the date of
defeasance was $___________ [$35,000,000 or less or less
than five percent of the Mortgage Pool balance,
whichever is less] which is less than 5% of the
aggregate Certificate Principal Balance of the
Certificates as of the date of the most recent
Certificate Administrator Report received by us (the
"Current Report").
O-4
l. The defeasance described herein, together with all prior
and simultaneous defeasances of Mortgage Loans, brings
the total of all fully and partially defeased Mortgage
Loans to $__________________, which is _____% of the
aggregate Certificate Balance of the Certificates as of
the date of the Current Report.
3. Certify that, in addition to the foregoing, the Master
Servicer has imposed such additional conditions to the
defeasance (or waived such conditions), subject to the
limitations imposed by the Mortgage Loan Documents, as are
consistent with the Servicing Standard.
4. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the
Defeasance Obligor, and opinions of counsel and independent
accountants executed and delivered in connection with the
defeasance described above and that originals or copies of
such agreements, instruments and opinions have been or will be
transmitted to the Trustee or Custodian on its behalf for
placement in the related Mortgage File or, to the extent not
required to be part of the related Mortgage File, are in the
possession of the Master Servicer as part of the Master
Servicer's Servicing File.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing
Standard set forth in, and the other applicable terms and
conditions of, the Pooling and Servicing Agreement.
6. Certify that the individual under whose hand the Master
Servicer has caused this Notice and Certification to be
executed did constitute a Servicing Officer as of the date of
the defeasance described above.
7. Agree to provide copies of all items listed in Exhibit B to
you upon request.
O-5
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
[PAR] [WFB] as Master
Servicer
By: ___________________________________
Name:
Title:
O-6
EXHIBIT P
FORM OF OUTSIDE MASTER SERVICER NOTICE
[Date]
[OUTSIDE MASTER SERVICER]
[OUTSIDE TRUSTEE]
Re: [Co-Lender][Intercreditor] Agreement, dated as of [_________],
200[ ] (the "Co-Lender Agreement") among [SPECIFY PARTIES]
Ladies and Gentlemen:
This notice is being delivered to you in connection with the
Co-Lender Agreement and pursuant to Section 3.02(c) of the Pooling and Servicing
Agreement dated as of December 1, 2007 (the "Agreement") among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as depositor (the "Depositor," which term
includes any successor entity under the Agreement), Prudential Asset Resources,
Inc., as a master servicer (in such capacity, a "Master Servicer," which term
includes any successor entity under the Agreement), Xxxxx Fargo Bank, National
Association, as a master servicer (in such capacity, a "Master Servicer," which
term includes any successor entity under the Agreement), as certificate
administrator (in such capacity, the "Certificate Administrator," which term
includes any successor entity under the Agreement) and as tax administrator (in
such capacity, the "Tax Administrator," which term includes any successor entity
under the Agreement), Centerline Servicing Inc., as general special servicer (in
such capacity, the "General Special Servicer," which term includes any successor
entity under the Agreement) and LaSalle Bank National Association, as trustee
(the "Trustee," which term includes any successor entity under the Agreement),
which Agreement relates to the issuance of the Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-PWR18. To the extent not defined herein, the capitalized terms used herein
have the respective meanings assigned in the Co-Lender Agreement.
[Notice is hereby given that as of __________________, the "Closing
Date" under the Agreement, the Trustee is the holder of [the Note ___ Mortgage
Loan] [Loan ___] (as defined in the Co-Lender Agreement), and, in that capacity,
the Trustee assumes the rights and obligations of the [Note ____ Lender] [_____
Noteholder] under the Co-Lender Agreement.]
[You are hereby directed to remit to [Xxxxx Fargo Bank, National
Association][Prudential Asset Resources, Inc.], as Master Servicer, all amounts
payable to the [Note ___ Lender] [__ Noteholder] under the Co-Lender Agreement
and the governing Servicing Agreement, to the following account:
Account: [_________]
P-1
Account #: [_______]
Title: [[Xxxxx Fargo Bank, National Association][Prudential Asset
Resources, Inc.], as Master Servicer, on behalf of LaSalle Bank
National Association, as Trustee, in trust for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18,
Collection Account]
Location: [Xxxxx Fargo Bank, National Association][Prudential Asset
Resources, Inc.]
[You are hereby further directed to forward, deliver, or otherwise
make available to [Xxxxx Fargo Bank, National Association][Prudential Asset
Resources, Inc.], as Master Servicer, all reports, statements, documents,
communications and other information that are to be forwarded, delivered or
otherwise made available to the [Note ___ Lender] [___ Noteholder] under the
Co-Lender Agreement and the Non-Trust-Servicing Agreement, to the following:
[address/facsimile/email address/telephone number]]
[Please also be advised that [______________], as the initial
"Controlling Class Representative" under the Agreement is, to the fullest extent
permitted under the Co-Lender Agreement, entitled to exercise any rights and
powers of the Trustee, in its capacity as [Note ___ Lender] [___ Noteholder],
under Section ___ of the Co-Lender Agreement.]
[Please also be advised that a new Controlling Class Representative
has been appointed in accordance with Section 3.23(a) of the Agreement, which
new Controlling Class Representative is _________________________ [include
notice information] and such party is, to the fullest extent permitted under the
Co-Lender Agreement, entitled to exercise any rights and powers of the Trustee,
in its capacity as [Note ___ Lender] [___ Noteholder], under Section ___ of the
Co-Lender Agreement.]
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: __________________________________
Name:
Title:
c.c. [OTHER RELATED NON-POOLED NOTEHOLDERS]
P-2
EXHIBIT Q
FORM OF ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO 000-000-0000 AND VIA EMAIL TO
XXX.XXX.XXXXXXXXXXXXX@XXXXXXXXXX.XXX AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A., as Certificate Administrator
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS)
Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR18--SEC
REPORT PROCESSING
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [11.06] [11.07] [11.09] of the Pooling and Servicing
Agreement, dated as of December 1, 2007 (the "Pooling and Servicing Agreement"),
by and among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor,
Prudential Asset Resources, Inc., as a master servicer, Xxxxx Fargo Bank, N.A.,
as a master servicer, Centerline Servicing Inc., as general special servicer,
Xxxxx Fargo Bank, N.A., as certificate administrator and tax administrator, and
LaSalle Bank National Association as trustee, the undersigned, as [ ], hereby
notifies you that certain events have come to our attention that [will] [may]
need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [ ], phone
number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By: __________________________________
Name:
Title:
cc: Depositor
Q-1
EXHIBIT R
COPY OF PRIMARY SERVICER UNDERTAKING TO INDEMNIFY
R-1
PRIMARY SERVICER UNDERTAKING TO INDEMNIFY
Reference is made to the Pooling and Servicing Agreement, dated as
of December 1, 2007 (the "Pooling and Servicing Agreement"), by and among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as depositor, Prudential Asset
Resources, Inc., as a master servicer, Xxxxx Fargo Bank, National Association
("WFB"), as a master servicer, certificate administrator and tax administrator,
Centerline Servicing Inc., as general special servicer, and LaSalle Bank
National Association, as trustee. Capitalized terms used and not defined herein
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
As additional consideration for the execution of the Nationwide
Primary Servicing Agreement by WFB as a Master Servicer and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Nationwide as Primary Servicer hereby agrees, for the benefit of
the Trust and the other Persons set forth in Section 3.22(l) of the Pooling and
Servicing Agreement, to perform the obligations imposed on Nationwide as Primary
Servicer under Section 3.22(l) of the Pooling and Servicing Agreement as if such
obligations were fully set forth in this instrument. This undertaking shall not
be waived, rescinded or otherwise modified without the written consent of each
of the entities set forth in such Section 3.22(l) and written confirmation from
each Rating Agency for the Rated Certificates to the effect that such waiver,
rescission or other modification shall not result in an Adverse Rating Event
with respect to any Class of Rated Certificates rated by such Rating Agency.
R-2
IN WITNESS WHEREOF, the Primary Servicer has caused its name to be signed
hereto by its officer thereunto duly authorized as of the 27th day of December,
2007.
NATIONWIDE LIFE INSURANCE COMPANY,
as Primary Servicer
By: ____________________________________
Name:
Title:
R-3
EXHIBIT S
FORMULA FOR ADJUSTMENT OF NON-TRUST ADMINISTRATIVE FEE ACCRUAL RATE FROM 30/360
BASIS TO ACTUAL/360 BASIS (IF APPLICABLE)
Not Applicable.
S-1
SCHEDULE I-A
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
S-I-A-1
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., SERIES 2007-PWR18
MORTGAGE LOAN SCHEDULE
SELLER CMSA CMSA
LOAN ID ID LOAN NO. PROPERTY NO. PROPERTY NAME (1) ADDRESS
---------------------------------------------------------------------------------------------------------------------------------
6107768 7 7 0-000 Xxxxxxxxx Xxxx 1000 Southlake Mall
6107437 9 9 9-001 11 MetroTech Center 11 MetroTech Center
6107601 18 18 HRC Portfolio 3 Various
6107601a 00-x 00-000 Xxxxxxx Xxx - Xxxxxxxx Xxxx 0000 X. S. 31 North
6107601b 00-x 00-000 Xxxxxxxx Xxxxxx - XX Xxxxxxxxxxxx 0000 X. 00xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107601c 00-x 00-000 Xxxxxxx Xxx - Xxxxxxxxx 0000 X. Xxxxx Xxxxxx
6107601d 00-x 00-000 Xxxxxxx Xxx - Xxxxxxx 000 X. Xxxxx Xxxx 120
6107601e 00-x 00-000 Xxxxxxx Xxx - Xxxxxxx 0000 Xxxxxx Xxxx
6107597 19 19 HRC Portfolio 1 Various
6107597a 19-a 19-001 Hampton Inn - Clearwater 00000 XX Xxxxxxx 00 Xxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107597b 19-b 00-000 Xxxxxxx Xxx - Xxxxxxxx Xxxx 0000 Xxxxx XX Xxxxxxx 00 Xxxxx
6107597c 00-x 00-000 Xxxxxxxx Xxxxxx - Xxxxxxxxxxx 0000 Xxxxxxx Xxxxxx
6107597d 00-x 00-000 Xxxxxxx Xxx - Xxxxxxx 0000 Hi-Pointe Drive
6107689 20 20 00-000 Xxxxxx Festival Shopping Center 0000 XX Xxxx 410
6107599 21 21 HRC Portfolio 2 Various
---------------------------------------------------------------------------------------------------------------------------------
6107599a 00-x 00-000 Xxxxxxxx Xxxxxx - Xxxxxxxx 000 X. Xxxxxxxx Xxxxxx
6107599b 00-x 00-000 Xxxxxxx Xxx - Xxxxxxxx 000 Xxxxxx Xxxxxx
6107599c 00-x 00-000 Xxxxxxxx Xxxxxx - Xxxxxxxxxx 0000 Xxxx Xxxxxx Xxxx
6107599d 00-x 00-000 Xxxxxxx Xxx - Xxxxxxxxxx 0000 Xxxxxxx Xxxx
6107431 30 30 30-001 Temple City Marketplace 0000-0000 Xxxxxxxx Xxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107466 39 39 00-000 Xxx Xxxxxxxx Senior Living 0000 Xxxxxx Xxxxxxx Xxxxxxx
6107656 40 40 00-000 Xxxxxxxx Xxxxxxxxxx 0000 X. Xxxxxxxxxx Xxxxxx
6107150 46 46 46-001 Xxxx Shopping Center 2913-3021 NE 72 Dr, 2904 NE Xxxxxx Xx,
0000 XX Xxxxxxxx Xx
6107655 47 47 47-001 Raintree Apartments 0000 X. Xxxxxxx Xxxxxxxxx
6107659 48 48 00-000 Xxxxx Xxxxx Senior Living 7858 & 0000 Xxxxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107729 50 50 00-000 Xxxxx Xxxxx Xxxxx 0000 Xxxxx Xxxxx Xxxxxx Drive
6107429 51 51 00-000 Xxxxxxx Xxxxx and Mall 0000 Xxxxx Xxxx Xxxxxx and 000
Xxxxxxx Xxxx Xxxxx
6107700 55 55 00-000 Xxxxxxx Xxxxx Apartments 0000 Xxxx Xxxx Xxxxx
6106801 56 56 Alexandria Apartments Various
6106801a 56-a 00-000 Xxxxxxxx Apartments 0000 Xxxxx Xxxxxxx Xxxx
---------------------------------------------------------------------------------------------------------------------------------
6106801b 56-b 00-000 Xxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxx
6107245 67 67 67-001 The Mix at Southbridge 7144 & 0000 Xxxx Xxxxxxx Xxxxx
6107169 68 68 00-000 Xxxxx Xxxx Shops 0000 Xxxxxx Xxxxxx
6107657 72 72 00-000 Xxxxxxxxx Xxxxx Apartments 0000 X. Xxxxxxxxxx Xxxxxx
6107518 73 73 73-001 Town and Country Shopping Center 0000 X. 00xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107476 75 75 Xxxxxxx Inn - Best Western Various
6107476a 75-a 75-001 Xxxxxxx Inn 5223 Page Road
6107476b 75-b 00-000 Xxxxxxx 0000 Xxxxxx Xxxxxx
6107414 78 78 00-000 Xxxxxxxxx Xxxxxx 0000 XX Xxxxxxx 68
6107078 79 79 00-000 Xxxxx 00xx Xxxxxx Xxxxxxxxx X0 - Xxxxxxxx A 00000 X. 00xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107079 80 80 00-000 Xxxxx 00xx Xxxxxx Xxxxxxxxx X0 - Xxxxxxxx X 00000 X. 00xx Xxxxxx
6107556 83 83 00-000 Xxx Xxxxx Xxxx Xxxxxxxx Xxxxxx 000 Xxxx Xxx Xxxxx Xxxxxx
6107585 85 85 00-000 Xxxxxxxxx Business Center II 100, 200, & 250 Corporate Court
6107699 89 89 00-000 Xxxxxxxx Xxxxx Apartments 0000 Xxxxxxxx Xxxxx Xxxxx
6107479 91 91 91-001 Xxxxxxx Corporate Plaza 00000 Xxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107648 96 96 96-001 Pine Hill Portfolio 0000-0000 Xxxx Xxxxxx
6107608 97 97 BGK Portfolio Various
6107608a 97-a 97-001 Corporate Park 000 Xxxxxxxxx Xxxxx
6107608b 97-b 00-000 0000 Xxxxxx 0000 Xxxxxx Xxxxxxxxx
6107608c 00-x 00-000 000 Xxxxxxxx Xxxx 2102,2106,2108 W. Pioneer Parkway
---------------------------------------------------------------------------------------------------------------------------------
6107675 98 98 00-000 Xxxxxx Xxxxxx 720 Xxxx Drive, 6255 & 0000 Xxxxxxxxx Xxxxxx
6107444 115 115 115-001 1811 Bering 0000 Xxxxxx Xxxxx
6107236 119 119 119-001 Dollar Self Storage - Laveen 0000 X. Xxxxxxxx Xxxx
6107611 120 120 000-000 Xxxxxxxxxx Xxxxx SC 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxx and 0000
X. Xxxxxxxx Xxxxxx
6107184 122 122 122-001 3200 Como 0000 Xxxx Xxxxxx XX
---------------------------------------------------------------------------------------------------------------------------------
6107408 124 124 124-001 Xxxxxxxx Medical Center 0000 Xxxxx Xxxx
6107459 125 125 000-000 Xxxxxxx Xxxxx 700, 715, 720, 735, 740 & 000 Xxxxxxx Xxxxx
6107523 133 133 133-001 Forest Oaks 0000 X.X. Xxxxx Xxxx Xxxx.
CUT-OFF MONTHLY MONTHLY FIRST
SELLER ORIGINAL DATE DEBT DEBT SERVICE PAYMENT
LOAN ID CITY STATE ZIP CODE BALANCE ($) BALANCE ($) (3) SERVICE ($) (4) (5) AFTER IO ($) (4) (5) DATE
---------------------------------------------------------------------------------------------------------------------------------
6107768 Xxxxxx XX 00000 70,000,000 70,000,000 380,795.54 439,620.24 1/5/2008
6107437 Xxxxxxxx XX 00000 61,000,000 61,000,000 330,367.25 NAP 11/5/2007
6107601 Various Various Various 26,965,000 26,941,047 172,036.28 NAP 12/5/2007
6107601a Xxxxxxxx Xxxx XX 00000 8,474,714 8,467,186
6107601b Xxxxxxxxxxxx XX 00000 6,163,429 6,157,954
---------------------------------------------------------------------------------------------------------------------------------
6107601c Xxxxxxxxx XX 00000 5,883,273 5,878,047
6107601d Xxxxxxx XX 00000 3,571,987 3,568,814
6107601e Xxxxxxx XX 00000 2,871,597 2,869,046
6107597 Various Various Various 26,900,000 26,876,104 171,621.58 NAP 12/5/2007
6107597a Xxxxxxxxxx XX 00000 10,998,522 10,988,752
---------------------------------------------------------------------------------------------------------------------------------
6107597b Xxxxxxxx Xxxx XX 00000 6,426,847 6,421,138
6107597c Xxxxxxxxxxx XX 00000 5,764,286 5,759,165
6107597d XxXxxxx XX 00000 3,710,345 3,707,049
6107689 Xxx Xxxxxxx XX 00000 26,800,000 26,800,000 143,559.91 166,584.12 1/5/2008
6107599 Various Various Various 26,225,000 26,201,704 167,315.10 NAP 12/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107599a Xxxxxxxxxxxx XX 00000 8,313,595 8,306,210
6107599b Xxxxxxxx XX 00000 6,623,840 6,617,956
6107599c Xxxxxxxxxx XX 00000 6,421,070 6,415,366
6107599d Xxxxxxxxxx XX 00000 4,866,495 4,862,172
6107431 Xxxxxx Xxxx XX 00000 22,500,000 22,500,000 120,335.94 139,709.17 11/1/2007
---------------------------------------------------------------------------------------------------------------------------------
6107466 Xxxxx XX 00000 19,075,000 19,058,285 122,581.09 NAP 12/5/2007
6107656 Xxxxx XX 00000 17,200,000 17,200,000 93,298.06 107,812.36 12/5/2007
6107150 Xxxxxxxxx XX 00000 15,500,000 15,429,434 92,631.59 NAP 8/5/2007
6107655 Xxxxx XX 00000 14,900,000 14,900,000 80,822.15 93,395.59 11/5/2007
6107659 Xxxxxxxxx XX 00000 14,450,000 14,450,000 82,043.89 93,434.45 12/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107729 Xxxxxx Xxxxxxx XX 00000 12,800,000 12,800,000 68,890.37 79,813.49 1/5/2008
6107429 Xxxxxxx XX 00000 12,810,000 12,792,867 86,414.01 NAP 12/5/2007
6107700 Xxxxxxxx Xxxxxxx XX 00000 11,650,000 11,650,000 65,752.38 75,020.40 12/5/2007
6106801 Xxxxxxxxxx XX 00000 11,512,500 11,512,500 59,821.03 70,137.39 10/1/2006
6106801a Xxxxxxxxxx XX 00000 6,322,738 6,322,738
---------------------------------------------------------------------------------------------------------------------------------
6106801b Xxxxxxxxxx XX 00000 5,189,762 5,189,762
6107245 Xxxxxxxxxx XX 00000 9,000,000 9,000,000 42,735.42 51,780.67 7/5/2007
6107169 Xxxxx Xxxx XX 00000 9,000,000 9,000,000 50,567.71 57,776.84 12/5/2007
6107657 Xxxxx XX 00000 8,200,000 8,200,000 44,479.31 51,398.91 12/5/2007
6107518 XxXxxxx XX 00000 8,200,000 8,200,000 44,895.00 51,721.77 10/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107476 Various NC Various 7,885,000 7,872,375 50,254.13 NAP 11/5/2007
6107476a Xxxxxx XX 00000 4,355,000 4,348,027
6107476b Xxxxxxxxxxxx XX 00000 3,530,000 3,524,348
6107414 Xxxxxxxxx XX 00000 7,546,000 7,546,000 40,740.54 47,151.28 11/5/2007
6107078 Xxxxxxxxxx XX 00000 4,250,000 4,237,490 24,991.16 NAP 10/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107079 Xxxxxxxxxx XX 00000 3,250,000 3,240,433 19,110.89 NAP 10/5/2007
6107556 Xxxxxxxx XX 00000 7,250,000 7,250,000 39,816.26 45,824.93 10/5/2007
6107585 Xxxxx Xxxxxxxxxx XX 00000 7,120,000 7,120,000 38,199.95 44,303.18 11/5/2007
6107699 Xxxxxxxx Xxxxxxx XX 00000 6,900,000 6,900,000 37,311.11 43,159.91 12/5/2007
6107479 Xxxxxx Xxxxxx XX 00000 6,700,000 6,700,000 34,701.19 40,731.57 11/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107648 Xxxxxxxxxxxx XX 00000 6,226,000 6,226,000 33,824.33 39,066.38 11/5/2007
6107608 Various Various Various 6,140,000 6,140,000 34,342.78 39,294.80 1/5/2008
6107608a Xxxxxxxxx XX 00000 4,051,458 4,051,458
6107608b Xxxxxxxxxxx XX 00000 1,256,266 1,256,266
6107608c Xxxxxxx XX 00000 832,276 832,276
---------------------------------------------------------------------------------------------------------------------------------
6107675 Xxxx XX 00000 6,000,000 6,000,000 32,292.36 37,412.57 1/5/2008
6107444 Xxxxxxx XX 00000 4,900,000 4,900,000 30,393.58 NAP 1/5/2008
6107236 Xxxxxx XX 00000 4,657,500 4,657,500 22,351.69 26,973.15 7/5/2007
6107611 Xxxxxxxxx XX 00000 4,600,000 4,600,000 24,368.82 28,382.85 12/5/2007
6107184 Xxxxxxxxxxx XX 00000 4,490,000 4,490,000 24,810.37 28,498.07 11/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107408 Xxxxxxxx XX 00000 4,250,000 4,250,000 28,404.87 NAP 1/5/2008
6107459 Xxxxxxx XX 00000 4,200,000 4,200,000 23,314.38 26,740.50 10/5/2007
6107523 Xxxxxxxxx XX 00000 3,600,000 3,600,000 19,618.75 22,636.20 11/5/2007
INTEREST MATURITY ARD ORIGINAL STATED REMAINING ORIGINAL REMAINING
SELLER INTEREST ACCRUAL DATE LOAN TERM TO MATURITY TERM TO MATURITY AMORTIZATION AMORTIZATION
LOAN ID RATE (4) BASIS OR ARD (Y/N) OR ARD (MOS.) OR ARD (MOS.) TERM (MOS.) (4) TERM (MOS.) (4)
----------------------------------------------------------------------------------------------------------------------
6107768 6.4385% Actual/360 12/5/2017 No 120 120 360 360
6107437 6.4100% Actual/360 10/5/2017 Yes 120 118 0 0
6107601 6.5900% Actual/360 11/5/2017 No 120 119 360 359
6107601a
6107601b
----------------------------------------------------------------------------------------------------------------------
6107601c
6107601d
6107601e
6107597 6.5900% Actual/360 11/5/2017 No 120 119 360 359
6107597a
----------------------------------------------------------------------------------------------------------------------
6107597b
6107597c
6107597d
6107689 6.3400% Actual/360 12/5/2017 No 120 120 360 360
6107599 6.5900% Actual/360 11/5/2017 No 120 119 360 359
----------------------------------------------------------------------------------------------------------------------
6107599a
6107599b
6107599c
6107599d
6107431 6.3300% Actual/360 10/1/2017 No 120 118 360 360
----------------------------------------------------------------------------------------------------------------------
6107466 6.6600% Actual/360 11/5/2017 No 120 119 360 359
6107656 6.4200% Actual/360 11/5/2017 No 120 119 360 360
6107150 5.9700% Actual/360 7/5/2017 No 120 115 360 355
6107655 6.4200% Actual/360 10/5/2017 No 120 118 360 360
6107659 6.7200% Actual/360 11/5/2012 No 60 59 360 360
----------------------------------------------------------------------------------------------------------------------
6107729 6.3700% Actual/360 12/5/2017 No 120 120 360 360
6107429 6.4900% Actual/360 11/5/2017 No 120 119 300 299
6107700 6.6800% Actual/360 11/5/2017 No 120 119 360 360
6106801 6.1500% Actual/360 9/1/2016 No 120 105 360 360
6106801a
----------------------------------------------------------------------------------------------------------------------
6106801b
6107245 5.6200% Actual/360 6/5/2017 No 120 114 360 360
6107169 6.6500% Actual/360 11/5/2017 No 120 119 360 360
6107657 6.4200% Actual/360 11/5/2017 No 120 119 360 360
6107518 6.4800% Actual/360 9/5/2017 No 120 117 360 360
----------------------------------------------------------------------------------------------------------------------
6107476 6.5800% Actual/360 10/5/2017 No 120 118 360 358
6107476a
6107476b
6107414 6.3900% Actual/360 10/5/2017 No 120 118 360 360
6107078 5.8200% Actual/360 9/5/2017 No 120 117 360 357
----------------------------------------------------------------------------------------------------------------------
6107079 5.8200% Actual/360 9/5/2017 No 120 117 360 357
6107556 6.5000% Actual/360 9/5/2017 No 120 117 360 360
6107585 6.3500% Actual/360 10/5/2017 No 120 118 360 360
6107699 6.4000% Actual/360 11/5/2017 No 120 119 360 360
6107479 6.1300% Actual/360 10/5/2017 No 120 118 360 360
----------------------------------------------------------------------------------------------------------------------
6107648 6.4300% Actual/360 10/5/2017 No 120 118 360 360
6107608 6.6200% Actual/360 12/5/2017 No 120 120 360 360
6107608a
6107608b
6107608c
----------------------------------------------------------------------------------------------------------------------
6107675 6.3700% Actual/360 12/5/2017 No 120 120 360 360
6107444 6.3200% Actual/360 12/5/2017 No 120 120 360 360
6107236 5.6800% Actual/360 6/5/2018 No 132 126 360 360
6107611 6.2700% Actual/360 11/5/2017 No 120 119 360 360
6107184 6.5400% Actual/360 10/5/2012 No 60 58 360 360
----------------------------------------------------------------------------------------------------------------------
6107408 6.3900% Actual/360 12/5/2017 No 120 120 300 300
6107459 6.5700% Actual/360 9/5/2017 No 120 117 360 360
6107523 6.4500% Actual/360 10/5/2017 No 120 118 360 360
REMAINING CROSSED PREPAYMENT MORTGAGE
SELLER INTEREST ONLY WITH PROVISIONS OWNERSHIP LOAN ADMINISTRATIVE PAYMENT
LOAN ID PERIOD (MOS.) OTHER LOANS (# OF PAYMENTS) (8) INTEREST SELLER (2) FEE RATE DATE
-------------------------------------------------------------------------------------------------------------------------
6107768 360 360 LO(24)/Defeasance(92)/Open(4) Fee PMCF 0.02148% 5th
6107437 0 0 LO(26)/Defeasance(87)/Open(7) Leasehold PMCF 0.02148% 5th
6107601 360 359 LO(26)/Defeasance(92)/Open(2) Fee/Leasehold PMCF 0.07148% 5th
6107601a Fee/Leasehold PMCF
6107601b Fee PMCF
-------------------------------------------------------------------------------------------------------------------------
6107601c Fee PMCF
6107601d Fee PMCF
6107601e Fee PMCF
6107597 360 359 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.07148% 5th
6107597a Fee PMCF
-------------------------------------------------------------------------------------------------------------------------
6107597b Fee PMCF
6107597c Fee PMCF
6107597d Fee PMCF
6107689 360 360 LO(25)/Defeasance(92)/Open(3) Fee PMCF 0.02148% 5th
6107599 360 359 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.07148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107599a Fee PMCF
6107599b Fee PMCF
6107599c Fee PMCF
6107599d Fee PMCF
6107431 360 360 LO(27)/Defeasance(90)/Open(3) Fee PMCF 0.07148% 1st
-------------------------------------------------------------------------------------------------------------------------
6107466 360 359 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107656 360 360 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107150 360 355 LO(30)/Defeasance(87)/Open(3) Fee PMCF 0.02148% 5th
6107655 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
6107659 360 360 LO(26)/Defeasance(32)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107729 360 360 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107429 300 299 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107700 360 360 LO(23)/GRTR1% or YM(95)/Open(2) Fee PMCF 0.02148% 5th
6106801 360 360 LO(40)/Defeasance(78)/Open(2) Fee PMCF 0.02148% 1st
6106801a Fee PMCF
-------------------------------------------------------------------------------------------------------------------------
6106801b Fee PMCF
6107245 360 360 LO(31)/Defeasance(87)/Open(2) Fee PMCF 0.07148% 5th
6107169 360 360 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107657 360 360 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107518 360 360 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107476 360 358 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
6107476a Fee PMCF
6107476b Fee PMCF
6107414 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
6107078 360 357 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107079 360 357 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
6107556 360 360 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
6107585 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
6107699 360 360 LO(23)/GRTR1% or YM(95)/Open(2) Fee PMCF 0.02148% 5th
6107479 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107648 360 360 LO(27)/Flex(91)/Open(2) Fee PMCF 0.02148% 5th
6107608 360 360 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107608a Fee PMCF
6107608b Fee PMCF
6107608c Fee PMCF
-------------------------------------------------------------------------------------------------------------------------
6107675 360 360 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107444 360 360 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107236 360 360 LO(31)/Defeasance(95)/Open(6) Fee PMCF 0.02148% 5th
6107611 360 360 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107184 360 360 LO(27)/Defeasance(31)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107408 300 300 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107459 360 360 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
6107523 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
SELLER PAYMENT GRACE PERIOD LETTER OF
LOAN ID EVENT OF LATE FEE (DAYS) CREDIT
-------------------------------------------------------------------------------------------------------------
6107768 0
6107437 0
6107601 0
6107601a
6107601b
-------------------------------------------------------------------------------------------------------------
6107601c
6107601d
6107601e
6107597 0
6107597a
-------------------------------------------------------------------------------------------------------------
6107597b
6107597c
6107597d
6107689 0 Leasing Reserve LOC ($1,000,000)
6107599 0
-------------------------------------------------------------------------------------------------------------
6107599a
6107599b
6107599c
6107599d
6107431 5
-------------------------------------------------------------------------------------------------------------
6107466 0
6107656 0
6107150 0 TI Reserve LOC (2,500,000)
6107655 0
6107659 0
-------------------------------------------------------------------------------------------------------------
6107729 0
6107429 0
6107700 0
6106801 5
6106801a
-------------------------------------------------------------------------------------------------------------
6106801b
6107245 0
6107169 0
6107657 0
6107518 0
-------------------------------------------------------------------------------------------------------------
6107476 0
6107476a
6107476b
6107414 0
6107078 0
-------------------------------------------------------------------------------------------------------------
6107079 0
6107556 0
6107585 0 PTC Therapeutics Rent Reserve LOC ($600,000), Tax Reserve LOC ($58,785)
6107699 0
6107479 0
-------------------------------------------------------------------------------------------------------------
6107648 0
6107608 0
6107608a
6107608b
6107608c
-------------------------------------------------------------------------------------------------------------
6107675 0
6107444 0
6107236 0
6107611 0
6107184 0
-------------------------------------------------------------------------------------------------------------
6107408 0 Improvement Reserve LOC ($127,340)
6107459 0 Leasing Reserve LOC ($150,000)
6107523 0
SELLER
LOAN ID BORROWER
---------------------------------------------------------------------------------------------------------------------------------
6107768 Southlake Mall L.L.C.
6107437 Forest City Tech Place Associates II, LLC
6107601 125Eastbay, LLC, 60Portage, LLC, 75Fremont, LLC, I-465, LLC and 78Ninethstreet, LLC
6107601a
6107601b
---------------------------------------------------------------------------------------------------------------------------------
6107601c
6107601d
6107601e
6107597 62LaPorte, LLC, 119TCBay, LLC, 185Clearwater, LLC and 80Bloom, LLC
6107597a
---------------------------------------------------------------------------------------------------------------------------------
6107597b
6107597c
6107597d
6107689 Xxxxxx North Loop Shopping Center, L.P.
6107599 77Valparaiso, LLC, 77-131Petoskey, LLC, Downtown Indy, LLC, 82Plainfiled, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107599a
6107599b
6107599c
6107599d
6107431 Calac Investment
---------------------------------------------------------------------------------------------------------------------------------
6107466 Chico Senior Living Delaware, LLC
6107656 1565 North, LLC
6107150 4th Plain Center LLC
6107655 1849 North, LLC
6107659 Olive Grove Properties, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107729 SCCC, LTD.
6107429 Concord Mall Properties, LLC
6107700 Chimney Ridge Apartments, LLC, BG Chimney Ridge, LLC, DE Chimney Ridge, LLC, MWH Chimney Ridge, LLC, Phoenix Ridge
Chimney Ridge, LLC, WC Holdings Chimney Ridge, LLC, Chimney Ridge Sponsor, LLC, WJC Chimney Ridge, LLC
6106801 Xxxxxxxxx Xxxxxxxxxx, LLC, Alexandria TIC 1, LLC, Alexandria TIC 2, LLC, ALexandria TIC 3, LLC, University Plains TIC
15, LLC
6106801a
---------------------------------------------------------------------------------------------------------------------------------
6106801b
6107245 The Mix Shops Properties, LLC
6107169 Pearl City Shops, LLC
6107657 1425 North, LLC
6107518 Town & Country Dunhill, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107476 Shree Hari Hospitality Corp., Sahaj Development LLC
6107476a
6107476b
6107414 Bluegrass Center, LLC
6107078 MSE Industrial Investments, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107079 MSE Industrial Investments, LLC
6107556 FABRICW, L.L.C., FABRICJEK, L.L.C., FABRICERW, L.L.C., FABRICC, L.L.C., FABRICKK, L.L.C., FABRICH, L.L.C., FABRICZ,
L.L.C., FABRICSEK, L.L.C., FABRICB, L.L.C.
6107585 46.24 Associates L.P.
6107699 Woodland Hills Apartments, LLC, XX Xxxxxxxx Hills, LLC, DRW Woodland Hills, LLC, Harbor Way Woodland Hills, LLC,
LAM Woodland Hills, LLC, MWH Woodland Hills, LLC, RAW Woodland Hills, LLC, RBW Woodland Hills, LLC, THP Woodland Hills,
LLC, UEW Woodland Hills, LLC, WC HOldings Woodland Hills, LLC, WJC Woodland Hills, LLC, Woodland Hills Sponsor, LLC
6107479 Xxxxxxx Business Center, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107648 Pine Hill Equities, LLC
6107608 BIG Office Properties, LLC
6107608a
6107608b
6107608c
---------------------------------------------------------------------------------------------------------------------------------
6107675 Xxxxxx Square, LLC
6107444 1811 Bering I, Ltd.
6107236 Dollar Self Storage #7, L.L.C.
6107611 Ambassador Dunhill, LLC
6107184 3200 Como Assoc., LLC
---------------------------------------------------------------------------------------------------------------------------------
6107408 Xxxx Xxxxx Property Investors, LLC
6107459 Xxxxxxx Place LLC
6107523 JAMRSS Forest Oaks, L.P.
NON-TRUST-SERVICED NON-TRUST-SERVICED
SELLER MASTER MASTER SERVICER LOAN GROUP POOLED MORTGAGE LOAN POOLED MORTGAGE
LOAN ID SERVICER FEE RATE (ONE OR TWO) APPLICABLE RATE LOAN ACCRUAL
---------------------------------------------------------------------------------------------------------------------
6107768 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.705000% 1
6107601a
6107601b
---------------------------------------------------------------------------------------------------------------------
6107601c
6107601d
6107601e
6107597 Prudential Asset Resources, Inc. 0.705000% 1
6107597a
---------------------------------------------------------------------------------------------------------------------
6107597b
6107597c
6107597d
6107689 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.705000% 1
---------------------------------------------------------------------------------------------------------------------
6107599a
6107599b
6107599c
6107599d
6107431 Prudential Asset Resources, Inc. 0.705000% 1
---------------------------------------------------------------------------------------------------------------------
6107466 Prudential Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
---------------------------------------------------------------------------------------------------------------------
6107729 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
6106801a
---------------------------------------------------------------------------------------------------------------------
6106801b
6107245 Prudential Asset Resources, Inc. 0.705000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
---------------------------------------------------------------------------------------------------------------------
6107476 Prudential Asset Resources, Inc. 0.205000% 1
6107476a
6107476b
6107414 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
---------------------------------------------------------------------------------------------------------------------
6107079 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
---------------------------------------------------------------------------------------------------------------------
6107648 Prudential Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
6107608a
6107608b
6107608c
---------------------------------------------------------------------------------------------------------------------
6107675 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
---------------------------------------------------------------------------------------------------------------------
6107408 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
SCHEDULE I-B
SCHEDULE OF BSCMI POOLED MORTGAGE LOANS
S-I-B-1
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., SERIES 2007-PWR18
MORTGAGE LOAN SCHEDULE
SELLER CMSA CMSA
LOAN ID ID LOAN NO. PROPERTY NO. PROPERTY NAME (1)
-----------------------------------------------------------------------------------
51254 3 3 Solo Cup Industrial Portfolio
51254 0-x 0-000 Xxxx Xxx - Xxxxxx, XX
00000 3-b 0-000 Xxxx Xxx - Xxxxxxx, XX
00000 0-x 0-000 Xxxx Xxx - Xxxxxxxxxxxx, XX
00000 3-d 0-000 Xxxx Xxx - Xxxxxxx, XX
-----------------------------------------------------------------------------------
51254 3-e 3-005 Solo Cup - Xxxxxxx, XX
00000 0-x 0-000 Xxxx Xxx - Xxxxxx, XX
00000 5 5 RRI Hotel Portfolio
51468 5-a 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxx
00000 5-b 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxx Alexandria
-----------------------------------------------------------------------------------
51468 5-c 0-000 Xxx Xxxx Xxx Xxxxxxxxxxx XXX
00000 5-d 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxxxx
00000 5-e 0-000 Xxx Xxxx Xxx Xxx Xxxxxxx Xxxxxxxx
00000 5-f 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxxxxx
00000 5-g 5-007 Red Roof Inn Naples
-----------------------------------------------------------------------------------
51468 5-h 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxxx
00000 5-i 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxxx Xxxxxx
00000 5-j 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxxxx
00000 5-k 0-000 Xxx Xxxx Xxx Xxxxx Xxxxxxxxxxx
00000 5-l 5-012 Red Roof Inn Laredo
-----------------------------------------------------------------------------------
51468 5-m 0-000 Xxx Xxxx Xxx Xxxxxxxx Jessup
51468 5-n 0-000 Xxx Xxxx Xxx Xxxxx Xxxxx
00000 5-o 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxx
00000 5-p 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxx
00000 5-q 5-017 Red Roof Inn Albany
-----------------------------------------------------------------------------------
51468 5-r 0-000 Xxx Xxxx Xxx Xxxxxxxxxxx
00000 5-s 0-000 Xxx Xxxx Xxx Xx. Xxxxx
00000 5-t 0-000 Xxx Xxxx Xxx Xx Xxxxxx Xxxxxxx Xxxxxxxxxxxx
00000 5-u 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxx
00000 5-v 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxxx
-----------------------------------------------------------------------------------
00000 5-w 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxxxxxx
00000 5-x 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxx
00000 5-y 0-000 Xxx Xxxx Xxx Xxxxx
00000 5-z 0-000 Xxx Xxxx Xxx Xxxxxxx
00000 5-aa 5-027 Red Roof Inn Allentown Bethlehem
-----------------------------------------------------------------------------------
51468 5-ab 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxxxxxxx
00000 5-ac 5-029 Red Roof Inn Chicago Downers Grove
51468 5-ad 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxx
00000 5-ae 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxx
00000 5-af 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxx
-----------------------------------------------------------------------------------
00000 5-ag 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxx Xxxxxx
00000 5-ah 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxx Xxxxxx
00000 5-ai 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxx
00000 5-aj 0-000 Xxx Xxxx Xxx Xxxxxxxx
00000 5-ak 5-037 Red Roof Inn Austin South
-----------------------------------------------------------------------------------
51468 5-al 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxxx
00000 5-am 5-039 Red Roof Inn Raleigh Downtown NCSU
51468 5-an 0-000 Xxx Xxxx Xxx Xx Xxxx Xxxx
00000 5-ao 0-000 Xxx Xxxx Xxx Xxxxxxxx
00000 5-ap 5-042 Red Roof Inn Raleigh Southwest Cary
-----------------------------------------------------------------------------------
51468 5-aq 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxx
00000 5-ar 0-000 Xxx Xxxx Xxx Xxxxx Xxxxx
00000 5-as 0-000 Xxx Xxxx Xxx Xxxxxxxx Xxxx
00000 5-at 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxx
00000 5-au 5-047 Red Roof Inn Greensboro Coliseum
-----------------------------------------------------------------------------------
51468 5-av 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxxxxxxxxx
00000 5-aw 0-000 Xxx Xxxx Xxx Xxxxxxxx
00000 5-ax 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxxx
00000 5-ay 0-000 Xxx Xxxx Xxx Xxxxx
00000 5-az 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxx
-----------------------------------------------------------------------------------
51468 5-ba 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxx Xxxxx
00000 5-bb 0-000 Xxx Xxxx Xxx Xxxxxxxx Xxxx Xxxxxxxxxxxx
00000 5-bc 5-055 Red Roof Inn Orlando Convention Center
51468 5-bd 5-056 Red Roof Inn Xxxxxxx Xxxx Xxxxxx Xxxx
00000 5-be 5-057 Red Roof Inn Huntington
-----------------------------------------------------------------------------------
51468 5-bf 0-000 Xxx Xxxx Xxx Xxxxxxxxx
00000 5-bg 0-000 Xxx Xxxx Xxx Xxxxxxx
00000 5-bh 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxx
00000 5-bi 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxxxx
00000 5-bj 5-062 Red Roof Inn Chicago Arlington Heights
-----------------------------------------------------------------------------------
51468 5-bk 5-063 Red Roof Inn Toledo University
51468 5-bl 0-000 Xxx Xxxx Xxx Xxxxxxxxx
00000 5-bm 0-000 Xxx Xxxx Xxx Xxxxxxxxxx XX Xxxxxxxxxxx
00000 5-bn 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxx Xxxxxxxxx
00000 5-bo 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxxxxx
-----------------------------------------------------------------------------------
51468 5-bp 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxx
00000 5-bq 0-000 Xxx Xxxx Xxx XxXxxxxxx
00000 5-br 0-000 Xxx Xxxx Xxx Xxxxxxxx Xxxxxx
00000 5-bs 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxx
00000 5-bt 5-072 Red Roof Inn Detroit Airport Belleville
-----------------------------------------------------------------------------------
51468 5-bu 0-000 Xxx Xxxx Xxx Xxxxxxxx Xxxx
00000 5-bv 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxxxx
00000 5-bw 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxx
00000 5-bx 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxxxxxx Xxxxxxx
00000 5-by 5-077 Red Roof Inn Dayton North
-----------------------------------------------------------------------------------
51468 5-bz 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxx
00000 5-ca 0-000 Xxx Xxxx Xxx Xxxxxx Xxxx Xxxxx Xxxxxxx
00000 8 8 0-000 Xxxxxxx Marriott
51083 10 10 00-000 Xxxx Xxxxxx Apartments
50637 14 14 AG Industrial Portfolio
-----------------------------------------------------------------------------------
50637 14-a 14-001 Sunny Delight - 00 Xxxx Xxxx
50637 14-b 14-002 Sunny Delight - 0000 Xxxxx Xxxxxx Xxxxxx
00000 00-x 00-000 Xxxxx Xxxxxxx - 0000 XxXxxxxx Blvd
52097 22 22 00-000 Xxxx Xxxxxx 30
50957 24 24 00-000 Xxxxx Xxxxx
-----------------------------------------------------------------------------------
50382 29 29 29-001 Reserve at Xxxxx Creek Walk
52098 31 31 31-001 Mesquite 30
51420 32 32 Sentinel and Blossum Business Centers
51420 32-a 32-001 Sentinel Business Center
51420 32-b 00-000 Xxxxxxx Business Center
-----------------------------------------------------------------------------------
51383 34 34 34-001 The Outpost
51503 38 38 38-001 Orchards at Dover
50469 42 42 42-001 Rite Aid - Salem
50026 43 43 43-001 Rite Aid - New Philadelphia
50467 44 44 44-001 Rite Aid Portfolio- Flatwoods
-----------------------------------------------------------------------------------
50468 45 45 45-001 Rite Aid Portfolio - New Salisbury
51633 49 49 49-001 000 Xxxxx Xxxxxxxx
50982 57 57 00-000 Xxxxxx Xxxxx
50492 58 58 00-000 Xxxxxxxxx Xxxxx - Haverhill
51322 66 66 66-001 UNH Park Court Apartment Portfolio
-----------------------------------------------------------------------------------
48482 71 71 00-000 Xxxx Xxxxx Xxxxx
00000 84 84 84-001 1261 Post Road
51448 87 87 87-001 000 Xxxxx Xxxxx Xx
00000 92 92 92-001 FedEx Xxxxxxxx
50053 95 95 95-001 Circuit City San Xxxxxx
-----------------------------------------------------------------------------------
50776 110 110 110-001 0000 Xxxxxxxxx Xxxxxx
50669 116 116 116-001 0000-0000 Xxxxxxxxxxxxx Xxxxxx
51574 130 130 000-000 Xxxxxxx Xxxxx
49916 131 131 131-001 2165 Xxxxxx Avenue
51723 132 132 132-001 2695 Mount Xxxxxx
-----------------------------------------------------------------------------------
51418 134 134 134-001 Toluca Towers
51732 146 146 ARC/GF Retail Portfolio
51732 146-a 000-000 Xxxxxxxxxxx-XxxxXxxxx - Xx. Peter's
51732 000-x 000-000 Xxxxxx Xxxxxxx - Xxxxxxxxx
00000 000-x 000-000 Xxxxxx Xxxxxxx - Xxxxxxxxxxxx
-----------------------------------------------------------------------------------
51732 146-d 146-004 Dollar General - Xxxxxxxx
SELLER
LOAN ID XXXXXXX XXXX XXXXX
------------------------------------------------------------------------------------------------------------------------
00000 Various Various Various
51254 0000 Xxxx Xxxxxxxxx Xxxxx Xxxxxx XX
00000 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX
00000 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxxxx XX
00000 0000 Xxxxxxx 000 XX Xxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51254 0000 Xxxxxxxxxxx Xxxx Xxxxxxx XX
00000 0000 X. Xxxx Xxxxxx Xxxxxx XX
00000 Various Various Various
51468 000 X Xxxxxxx Xx Xxxxxxx XX
00000 0000 Xxxxxxxx Xxx Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00 Xxxxxxxxxxx Xxxx Xxxxxxxx XX
00000 00 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx XX
00000 0000 Xxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX
00000 0000 X Xxxx Xx Xxxxxxxxxxxxxxx XX
00000 0000 Xxxxx Xxxxxxxxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00 Xxxxxxxx Xxx Xxxxxx XX
00000 0000 Xxxxx Xxxx X Xxxxxxxxx XX
00000 0000 Xxxxxxx Xxx Xxxxxxx XX
00000 0000 Xxxxx XX 000 Xxxxx XX
00000 0000 Xxxx Xxxxxx Xxxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxxxxx Xxxx Xxxxxx XX
00000 00000 Xxxxxxxxx Xx Xxxxx Xxxxx XX
00000 0000 Xxxx Xxxx Xx Xxxx Xxxx XX
00000 0000 X Xxx Xx Xxxxxx XX
00000 000 Xxxx Xx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 XX 00xx Xxxxxx Xxxxxxxxxxx XX
00000 0000 Xxxxxx Xxxxxx Xx. Xxxxx XX
00000 000 Xxxxxxxxxx Xx Xxxxx Xxxxxx XX
00000 000 Xxxxx Xx Xxxxxxxxxxxx XX
00000 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 X Xxxxxxxxx Xx Xxxxxxxxx XX
00000 00 Xxxx X-00 Xxxxxxx Xxxx Xxxxx Xxxxxx XX
00000 00 Xxxxxx Xx Xxxxx XX
00000 00 Xxxx Xxx Xxxxxxx XX
00000 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00000 Xxxxx 00 Xxxxxxxxx Xxxxxxxx XX
00000 0000 Xxxxxxxxxxx Xx Xxxxxxx Xxxxx XX
00000 00000 Xxxxxxxxx Xx Xxxxxx XX
00000 0000 Xxxxxxx Xx Xxxxxxxxx XX
00000 0000 X Xxxxxxxxx Xx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00000 Xxxxxx Xxxxx Xx Xxxxxx XX
00000 0000 Xxxxxx Xxxxxx Xx Xxxxxx XX
00000 00 Xxxxx Xx Xxxxxxx XX
00000 0000 X Xxxxxxxx Xxxx Xxxxxxxx XX
00000 0000 Xxxxx Xxxxxxxxxx Xxxxxxx 00 Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxx Xxx Xxxxxxxxxxx XX
00000 0000 X Xxxxxxxx Xx Xxxxxxx XX
00000 0000 Xxxxxx Xxxxxx Xx Xxxx XX
00000 000 Xxxxxxxxxxx Xxx Xxxxxxxx XX
00000 0000 Xxxxxx Xx Xxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00000 Xxxxxxxx Xxx Xxxxxxxx XX
00000 0000 X Xxxxxxxxx Xx Xxxxx XX
00000 0000 Xxx Xxxxx Xx Xxxxxxxx XX
00000 0000 Xxxx Xx Xxxxxxx XX
00000 0000 X Xxxxxxxxxx Xx Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 000 Xxxxxxxx Xx Xxxxxxxxxxxx XX
00000 0000 X Xxxxx Xx Xxxxxxxx XX
00000 000 Xxxxxxxxx Xxx Xxxxxxxxxx XX
00000 00 Xxx Xxxx Xx Xxxxx XX
00000 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxx Xx Xxxxxxxxx Xxxxx XX
00000 0000 Xxxxx Xx Xxxxxxxxxxxx XX
00000 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
00000 000 Xxxxxxx Xx XX Xxxxxxxx XX
00000 0000 XX Xxx 00 X Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxx Xx Xxxxxxxxx XX
00000 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX
00000 00000 Xxxxxx Xx Xxxxxxxxxx Xxxxxxx XX
00000 000 Xxxxxxxx Xx Xxxxxxxxx XX
00000 00 X Xxxxxxxxx Xx Xxxxxxxxx Xxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxxxx Xxxx Xxxxxx XX
00000 000 X Xxxxxxx Xx Xxxxxxxxx XX
00000 0000 Xxx Xxxx Xxx Xx Xxxxxxxxxx XX
00000 000 Xxxxxx Xxxxxxx Xx Xxxxxxxxx XX
00000 00000 Xxxxxxx Xxxx Xxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00000 Xxxxxx Xx Xxxxxx XX
00000 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX
00000 0000 Xxxx Xx Xxxxxx XX
00000 00000 Xxxx Xxx Xx Xxxxxxx XX
00000 00000 X X 00 Xxxxxxx Xx Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 000 Xxxx Xxxxxxx Xxxx Xxxxxxxx Xxxx XX
00000 00000 Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxxxxxx XX
00000 00000 Xxx Xxxxx Xx X Xxxxxxxx XX
00000 00 Xxxxxx Xxxx Xxxxxxxxx XX
00000 0000 Xxxxxx Xxxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxxxx Xx Xxxxxxxxxx XX
00000 0000 Xxxxxx Xxxx Xxxxxx XX
00000 000 Xxxx Xxxx Xxxxxx Xxxxxxx XX
00000 000-000 Xxxx Xxxxxx Xxxxxxxx XX
00000 Various Various Various
------------------------------------------------------------------------------------------------------------------------
50637 00 Xxxx Xxxx Xxxxxxxxx XX
00000 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX
00000 7000 & 0000 XxXxxxxx Xxxx Xxxxxxx XX
00000 00000 Xxxxx Xxx Xxxxxxx Xxxx X. Xxxxxxx XX
00000 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
50382 00000 Xxxx Xxxx Xxxxxx XX
00000 00000 Xxxxxx X Xxxxxxx Xxx Xxxxxxxx XX
00000 Various Xxx Xxxxxxx XX
00000 10530-10732 Xxxxxxxx Xxxxx Xxx Xxxxxxx XX
00000 00000-00000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51383 0000 X Xxxxxxxxxx Xxxxx Xxxxx Xxxx XX
00000 0000 Xxxxx 00 Xxxx Xxxx Xxxxx XX
00000 0000 Xxxx Xxxxx Xxxxxx Xxxxx XX
00000 000 Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxxxxx XX
00000 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
50468 0000 Xxxxx Xxxxx 00 (0000 Xxxxxxx 000 XX) New Xxxxxxxxx XX
00000 000 Xxxxx Xxxxxxxx Xxxxxxx XX
00000 000 Xxxxxx Xxxxxx Xxxxxx XX
00000 000 Xxxx Xxxxxx Xxxxxxxxx XX
00000 00 Xxxx Xx. & 00-00 Xxxx Xxxxx, 42 Xxxxxxxx Avenue, 0 Xxxx Xxxxxx & 0 Xxxxxxx Xxxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
48482 0000-0000 Xxxxxxx Xxxx Xxxxxx Xxxxxxxxxx XX
00000 0000 Xxxx Xxxx Xxxxxxxxx XX
00000 000 Xxxxx Xxxxx Xxxx Xxxxx Xxxxxx XX
00000 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx XX
00000 000 Xxxxxx Xxxxxxxxx Xxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
50776 0000 Xxxxxxxxx Xxxxxx Xxxxx XX
00000 0000-0000 Xxxxxxxxxxxxx Xxxxxx Xxxxxxxxx XX
00000 0000-0000 Xxxxxxxx Xxxx Xxxx Xxxx XX
00000 0000 Xxxxxx Xxxxxx Xxxxx XX
00000 0000-0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51418 0000 Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxx XX
00000 Various Various Various
51732 0000 Xxx Xxxxxx Xxxx Xxxxx Xx. Xxxxx'x XX
00000 0000 Xxxx Xxxx Xxxxxx Xxxxxxxxx XX
00000 0000 Xxxxxxx Xxxx Xxxxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51732 0000 Xxxxx Xxxxxxx Xxxxxxxx XX
CUT-OFF MONTHLY MONTHLY FIRST INTEREST
SELLER ORIGINAL DATE DEBT DEBT SERVICE PAYMENT INTEREST ACCRUAL
LOAN ID ZIP CODE BALANCE ($) BALANCE ($) (3) SERVICE ($) (4) (5) AFTER IO ($) (4) (5) DATE RATE (4) BASIS
---------------------------------------------------------------------------------------------------------------------------
51254 Various 97,500,000 97,500,000 514,865.45 629,788.14 9/1/2007 6.2500% Actual/360
51254 75236 32,788,889 32,788,889
51254 60652 24,555,555 24,555,555
51254 21632 14,155,556 14,155,556
51254 30013 10,496,296 10,496,296
---------------------------------------------------------------------------------------------------------------------------
51254 30904 9,003,704 9,003,704
51254 61802 6,500,000 6,500,000
51468 Various 78,000,000 77,810,961 504,507.40 NAP 10/1/2007 6.7230% Actual/360
51468 60611 5,139,603 5,127,147
51468 22303 2,317,956 2,312,338
---------------------------------------------------------------------------------------------------------------------------
51468 07094 2,295,988 2,290,424
51468 19029 2,105,111 2,100,009
51468 78205 2,102,937 2,097,840
51468 22903 1,701,326 1,697,203
51468 34104 1,696,511 1,692,400
---------------------------------------------------------------------------------------------------------------------------
51468 01801 1,637,314 1,633,346
51468 19047 1,592,092 1,588,234
51468 19053 1,444,322 1,440,822
51468 33610 1,342,573 1,339,320
51468 78041 1,318,248 1,315,053
---------------------------------------------------------------------------------------------------------------------------
51468 20794 1,313,034 1,309,851
51468 70816 1,296,326 1,293,184
51468 20745 1,246,517 1,243,496
51468 85743 1,224,899 1,221,931
51468 12205 1,224,242 1,221,275
---------------------------------------------------------------------------------------------------------------------------
51468 32608 1,188,708 1,185,827
51468 63110 1,155,446 1,152,646
51468 08054 1,155,389 1,152,588
51468 14026 1,144,996 1,142,221
51468 29406 1,105,602 1,102,923
---------------------------------------------------------------------------------------------------------------------------
51468 14467 1,081,528 1,078,907
51468 36606 1,080,351 1,077,733
51468 13502 1,060,844 1,058,273
51468 06460 1,046,648 1,044,111
51468 18109 1,035,716 1,033,206
---------------------------------------------------------------------------------------------------------------------------
51468 16066 1,020,029 1,017,557
51468 60515 1,011,496 1,009,044
51468 48091 995,286 992,873
51468 40503 988,846 986,449
51468 85714 976,723 974,356
---------------------------------------------------------------------------------------------------------------------------
51468 20708 951,545 949,239
51468 20706 927,586 925,337
51468 14226 923,606 921,367
51468 13206 920,660 918,429
51468 78744 913,081 910,868
---------------------------------------------------------------------------------------------------------------------------
51468 60527 909,681 907,477
51468 27603 900,851 898,668
51468 79912 899,387 897,207
51468 21001 883,569 881,428
51468 27511 873,429 871,312
---------------------------------------------------------------------------------------------------------------------------
51468 48124 847,242 845,189
51468 44312 806,976 805,020
51468 29223 796,626 794,695
51468 14075 788,394 786,483
51468 27403 753,591 751,765
---------------------------------------------------------------------------------------------------------------------------
51468 01772 749,911 748,094
51468 61108 738,602 736,812
51468 17110 714,269 712,538
51468 03079 706,873 705,160
51468 46268 694,722 693,038
---------------------------------------------------------------------------------------------------------------------------
51468 48309 690,089 688,417
51468 43068 679,268 677,622
51468 32819 675,441 673,804
51468 30144 656,083 654,493
51468 25705 640,425 638,873
---------------------------------------------------------------------------------------------------------------------------
51468 40505 639,949 638,398
51468 46514 617,149 615,654
51468 44130 593,866 592,426
51468 37214 591,100 589,667
51468 60005 563,840 562,474
---------------------------------------------------------------------------------------------------------------------------
51468 43606 554,389 553,045
51468 61820 551,570 550,233
51468 40218 544,784 543,464
51468 25526 542,120 540,806
51468 44145 537,304 536,002
---------------------------------------------------------------------------------------------------------------------------
51468 48180 536,547 535,247
51468 70507 510,319 509,082
51468 43017 498,939 497,730
51468 77084 487,502 486,320
51468 48111 478,932 477,772
---------------------------------------------------------------------------------------------------------------------------
51468 46360 473,490 472,342
51468 32218 471,381 470,238
51468 48170 461,853 460,733
51468 02048 404,328 403,348
51468 45414 348,675 347,830
---------------------------------------------------------------------------------------------------------------------------
51468 40222 289,302 288,601
51468 75063 214,147 213,628
49393 23510 62,000,000 62,000,000 335,835.49 NAP 9/1/2007 6.4110% Actual/360
51083 11205 47,000,000 47,000,000 247,000.23 288,470.67 9/1/2007 6.2200% Actual/360
50637 Various 39,150,000 39,150,000 191,886.20 229,738.75 7/1/2007 5.8010% Actual/360
---------------------------------------------------------------------------------------------------------------------------
50637 08810 16,443,524 16,443,524
50637 92807 14,451,958 14,451,958
50637 30336 8,254,518 8,254,518
52097 77089 26,200,000 26,098,551 196,405.92 NAP 11/1/2007 6.5690% Actual/360
50957 60632 25,200,000 25,200,000 138,502.29 159,364.01 10/1/2007 6.5050% Actual/360
---------------------------------------------------------------------------------------------------------------------------
50382 30097 23,000,000 23,000,000 125,555.78 NAP 10/1/2007 6.4610% Actual/360
52098 75149 22,200,000 22,115,874 168,550.13 NAP 11/1/2007 6.7310% Actual/360
51420 Various 22,040,000 22,040,000 114,523.82 134,273.89 9/1/2007 6.1500% Actual/360
51420 78217 13,240,000 13,240,000
51420 78247 8,800,000 8,800,000
---------------------------------------------------------------------------------------------------------------------------
51383 76706 22,000,000 22,000,000 116,788.17 135,930.31 11/1/2007 6.2830% Actual/360
51503 08753 19,640,000 19,640,000 104,359.55 121,425.46 10/1/2007 6.2890% Actual/360
50469 44460 4,928,000 4,913,515 28,999.98 NAP 10/1/2007 5.8270% Actual/360
50026 44663 4,528,000 4,528,000 22,292.59 NAP 10/1/2007 5.8270% Actual/360
50467 41139 3,600,000 3,600,000 17,723.79 NAP 10/1/2007 5.8270% Actual/360
---------------------------------------------------------------------------------------------------------------------------
50468 47161 2,954,000 2,954,000 14,543.36 NAP 10/1/2007 5.8270% Actual/360
51633 10701 14,250,000 14,250,000 77,874.27 89,770.01 11/1/2007 6.4680% Actual/360
50982 03076 11,000,000 11,000,000 59,295.60 68,661.67 10/1/2007 6.3800% Actual/360
50492 01830 10,900,000 10,900,000 57,715.88 67,233.74 10/1/2007 6.2670% Actual/360
51322 03824 9,000,000 9,000,000 49,358.65 56,832.86 9/1/2007 6.4910% Actual/360
---------------------------------------------------------------------------------------------------------------------------
48482 60540 8,400,000 8,400,000 40,901.29 49,089.51 12/1/2006 5.7630% Actual/360
51094 06824 7,200,000 7,200,000 36,195.83 42,936.46 10/1/2007 5.9500% Actual/360
51448 10607 7,000,000 7,000,000 38,750.83 44,484.42 10/1/2007 6.5520% Actual/360
51232 29506 6,550,000 6,550,000 34,759.96 40,461.63 10/1/2007 6.2810% Actual/360
50053 94901 6,400,000 6,400,000 31,492.74 NAP 6/1/2007 5.8240% Actual/360
---------------------------------------------------------------------------------------------------------------------------
50776 10457 5,100,000 5,100,000 27,306.31 31,690.72 9/1/2007 6.3370% Actual/360
50669 02139 4,875,000 4,875,000 25,685.61 29,971.84 8/1/2007 6.2360% Actual/360
51574 27511 4,000,000 4,000,000 21,832.41 25,177.59 10/1/2007 6.4600% Actual/360
49916 10453 3,850,000 3,840,455 24,639.25 NAP 10/1/2007 6.6200% Actual/360
51723 93306 3,724,000 3,724,000 20,341.70 23,452.56 10/1/2007 6.4650% Actual/360
---------------------------------------------------------------------------------------------------------------------------
51418 91602 3,527,000 3,527,000 18,547.45 21,656.74 8/1/2007 6.2240% Actual/360
51732 Various 3,026,000 3,026,000 16,416.51 NAP 10/1/2007 6.4210% Actual/360
51732 63304 1,290,000 1,290,000
51732 43130 590,000 590,000
51732 41051 580,000 580,000
---------------------------------------------------------------------------------------------------------------------------
51732 41042 566,000 566,000
MATURITY ARD ORIGINAL STATED REMAINING ORIGINAL REMAINING REMAINING CROSSED
SELLER DATE LOAN TERM TO MATURITY TERM TO MATURITY AMORTIZATION AMORTIZATION INTEREST ONLY WITH
LOAN ID OR ARD (Y/N) OR ARD (MOS.) OR ARD (MOS.) TERM (MOS.) (4) TERM (MOS.) (4) PERIOD (MOS.) OTHER LOANS
---------------------------------------------------------------------------------------------------------------------------
51254 8/1/2017 No 120 116 316 316 316 316
51254
51254
51254
51254
---------------------------------------------------------------------------------------------------------------------------
51254
51254
51468 9/1/2017 No 120 117 360 357 360 357
51468
51468
---------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
---------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
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51468
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51468
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---------------------------------------------------------------------------------------------------------------------------
51468
51468
49393 8/1/2012 No 60 56 0 0 0 0
51083 8/1/2014 No 84 80 360 360 360 360
50637 6/1/2017 No 120 114 360 360 360 360
---------------------------------------------------------------------------------------------------------------------------
50637
50637
50637
52097 10/1/2012 No 60 58 240 238 240 238
50957 9/1/2017 No 120 117 360 360 360 360
---------------------------------------------------------------------------------------------------------------------------
50382 3/1/2013 No 66 63 0 0 0 0
52098 10/1/2012 No 60 58 240 238 240 238
51420 8/1/2017 No 120 116 360 360 360 360
51420
51420
---------------------------------------------------------------------------------------------------------------------------
51383 10/1/2017 No 120 118 360 360 360 360
51503 9/1/2017 No 120 117 360 360 360 360
50469 9/1/2017 Yes 120 117 360 357 360 357
50026 9/1/2017 Yes 120 117 0 0 0 0
50467 9/1/2017 Yes 120 117 0 0 0 0
---------------------------------------------------------------------------------------------------------------------------
50468 9/1/2017 Yes 120 117 0 0 0 0
51633 10/1/2017 No 120 118 360 360 360 360
50982 9/1/2017 No 120 117 360 360 360 360
50492 9/1/2017 No 120 117 360 360 360 360
51322 8/1/2017 No 120 116 360 360 360 360
---------------------------------------------------------------------------------------------------------------------------
48482 11/1/2017 No 132 119 360 360 360 360
51094 9/1/2017 No 120 117 360 360 360 360
51448 9/1/2017 No 120 117 360 360 360 360
51232 9/1/2012 Yes 60 57 360 360 360 360
50053 5/1/2012 Yes 60 53 0 0 0 0
---------------------------------------------------------------------------------------------------------------------------
50776 8/1/2012 No 60 56 360 360 360 360
50669 7/1/2017 No 120 115 360 360 360 360
51574 9/1/2017 No 120 117 360 360 360 360
49916 9/1/2017 No 120 117 360 357 360 357
51723 9/1/2017 No 120 117 360 360 360 360
---------------------------------------------------------------------------------------------------------------------------
51418 7/1/2017 No 120 115 360 360 360 360
51732 9/1/2017 Yes 120 117 0 0 0 0
51732
51732
51732
---------------------------------------------------------------------------------------------------------------------------
51732
PREPAYMENT MORTGAGE
SELLER PROVISIONS OWNERSHIP LOAN ADMINISTRATIVE PAYMENT
LOAN ID (# OF PAYMENTS) (8) INTEREST SELLER (2) FEE RATE DATE
----------------------------------------------------------------------------------------------------------------------
51254 GRTR3% or YM(23)/GRTR1% or YM(96)/Open(1) Fee BSCMI 0.03148% 1st
51254 Fee BSCMI
51254 Fee BSCMI
51254 Fee BSCMI
51254 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51254 Fee BSCMI
51254 Fee BSCMI
51468 LO(27)/Flex(89)/Open(4) Fee/Leasehold BSCMI 0.03148% 1st
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Xxxxxxxxx XXXXX
00000 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Xxxxxxxxx XXXXX
00000 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
49393 LO(28)/Defeasance(30)/Open(2) Leasehold BSCMI 0.05148% 1st
51083 LO(28)/GRTR1% or YM(55)/Open(1) Xxx XXXXX 0.00000% 0xx
00000 XXXX0% or YM(119)/Open(1) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
50637 Fee BSCMI
50637 Fee BSCMI
50637 Fee BSCMI
52097 LO(26)/Defeasance(32)/Open(2) Fee BSCMI 0.03148% 1st
50957 LO(27)/Defeasance(92)/Open(1) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
50382 LO(27)/Defeasance(36)/Open(3) Fee BSCMI 0.03148% 1st
52098 LO(26)/Defeasance(32)/Open(2) Fee BSCMI 0.03148% 1st
51420 LO(28)/Defeasance(91)/Open(1) Fee BSCMI 0.03148% 1st
51420 Fee BSCMI
51420 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51383 LO(26)/Defeasance(93)/Open(1) Fee BSCMI 0.03148% 1st
51503 LO(27)/Defeasance(92)/Open(1) Xxx XXXXX 0.00000% 0xx
00000 XXXX0% or YM(27)/GRTR3% or YM or Def(20)/Flex(69)/Open(4) Fee BSCMI 0.03148% 1st
50026 GRTR3% or YM(27)/GRTR3% or YM or Def(20)/Flex(69)/Open(4) Fee BSCMI 0.03148% 1st
50467 GRTR3% or YM(27)/GRTR3% or YM or Def(20)/Flex(69)/Open(4) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
50468 GRTR3% or YM(27)/GRTR3% or YM or Def(20)/Flex(69)/Open(4) Fee BSCMI 0.03148% 1st
51633 LO(26)/Defeasance(93)/Open(1) Xxx XXXXX 0.00000% 0xx
00000 XXXX0% or YM(25)/GRTR1% or YM(94)/Open(1) Fee BSCMI 0.03148% 1st
50492 LO(27)/Defeasance(92)/Open(1) Fee/Leasehold BSCMI 0.07148% 1st
51322 LO(28)/Defeasance(91)/Open(1) Fee BSCMI 0.07148% 1st
----------------------------------------------------------------------------------------------------------------------
48482 LO(48)/GRTR1% or YM(83)/Open(1) Fee BSCMI 0.07148% 1st
51094 LO(27)/Defeasance(92)/Open(1) Fee BSCMI 0.03148% 1st
51448 LO(27)/GRTR1% or YM(90)/Open(3) Fee BSCMI 0.03148% 1st
51232 LO(27)/Defeasance(32)/Open(1) Fee BSCMI 0.03148% 1st
50053 LO(31)/Defeasance(27)/Open(2) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
50776 GRTR2% or YM(59)/Open(1) Fee BSCMI 0.03148% 1st
50669 LO(29)/Defeasance(90)/Open(1) Fee BSCMI 0.07148% 1st
51574 LO(27)/Defeasance(91)/Open(2) Fee BSCMI 0.03148% 1st
49916 LO(27)/GRTR1% or YM(89)/Open(4) Fee BSCMI 0.03148% 1st
51723 LO(27)/Defeasance(92)/Open(1) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
51418 LO(29)/Defeasance(87)/Open(4) Fee BSCMI 0.04148% 1st
51732 GRTR3% or YM(24)/GRTR1% or YM(3)/Flex(89)/Open(4) Fee/Leasehold BSCMI 0.03148% 1st
51732 Leasehold BSCMI
51732 Fee BSCMI
51732 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51732 Fee BSCMI
SELLER PAYMENT GRACE PERIOD LETTER OF
LOAN ID EVENT OF LATE FEE (DAYS) CREDIT BORROWER
------------------------------------------------------------------------------------------------------------------------------------
51254 0 SCC Distribution Centers LLC
51254
51254
51254
51254
------------------------------------------------------------------------------------------------------------------------------------
51254
51254
51468 0 R-Roof I, LLC, R-Roof II, LLC, and R-Roof III, LLC
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
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51468
51468
51468
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51468
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51468
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51468
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51468
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51468
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51468
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51468
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51468
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51468
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51468
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51468
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51468
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51468
51468
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51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
49393 0 IProcNorfolk, LLC
51083 0 The Chocolate Factory, LLC
50637 0 AGNL Beverages, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
50637
50637
50637
52097 5 EPT Gulf Pointe, Inc.
50957 5 Yards Plaza, LLC
------------------------------------------------------------------------------------------------------------------------------------
50382 0 Xxxxx Creek Realty Partners, LLC
52098 5 EPT Mesquite, Inc.
51420 5 Blossom Sentinel Investors, LLC
51420
51420
------------------------------------------------------------------------------------------------------------------------------------
51383 0 Outpost Apartments, LLC; Outpost Apartments Property 1, LLC;
Outpost Apartments Property 2, LLC; Outpost Apartments
Property 3, LLC; Outpost Apartments Property 4, LLC;
Outpost Apartments Property 5, LLC; Outpost Apartments
Property 6, LLC; Outpost Apartments Property 7, LLC;
Outpost Apartments Property 8, LLC; Outpost Apartments
Property 10, LLC; Outpost Apartments Property 11, LLC;
Outpost Apartments Property 13, LLC; Outpost Apartments
Property 14, LLC; Outpost Apartments Property 15, LLC;
Outpost Apartments Property 16, LLC; Outpost Apartments
Property 17, LLC; Outpost Apartments Property 18, LLC;
Outpost Apartments Property 19, LLC; Outpost Apartments
Property 20, ELC and Outpost Apartments Property 22, LLC
51503 0 The Orchards at Dover, L.L.C.
50469 5 ARC RASLMOH001, LLC
50026 5 ARC Ranphoh001, LLC
50467 5 ARC RAFWKY0001, LLC
------------------------------------------------------------------------------------------------------------------------------------
50468 5 ARC Ransin0001, LLC
51633 0 984 Associates, LLC
50982 5 Pelham Realty Group LLC
50492 5 Monument Square Company, LLC
51322 5 Varsity Durham II, LLC
------------------------------------------------------------------------------------------------------------------------------------
48482 5 Standex LOC ($400,000) Nare High Grove, LLC
51094 5 0000 Xxxx Xxxx Associates LLC
51448 5 280 DFR, LLC
51232 5 Xxxxxxxx Federal Mezzanine LLC & Middleboro Federal
Mezzanine I, LLC
50053 5 Simvest Real Estate II LLC
------------------------------------------------------------------------------------------------------------------------------------
50776 5 2085 Valentine LLC
50669 5 1718-1730 Mass. Ave. LLC
51574 5 Roof Repair Reserve LOC ($142,500) Hemlock Plaza Limited Partnership
49916 5 Tuck-It-Away Associates-Xxxxxx, LLC
51723 5 Golden State Properties LLC (a/k/a Bakersfield Golden State
Properties LLC) and Bryloo Investments LLC
------------------------------------------------------------------------------------------------------------------------------------
51418 5 4038 Xxxxxx, LLC
51732 0 XXX XXXXXXX000, XXX, XXX XXXXXX0000, LLC, ARC DGLANOH001,
LLC, ARC BSSPMO0001, LLC
51732
51732
51732
------------------------------------------------------------------------------------------------------------------------------------
51732 Pooled Mortgage Loan Applicable Rate
NON-TRUST-SERVICED
SELLER MASTER MASTER SERVICER LOAN GROUP POOLED MORTGAGE LOAN
LOAN ID SERVICER FEE RATE (ONE OR TWO) APPLICABLE RATE
------------------------------------------------------------------------------------------------------------------------------------
51254 Xxxxx Fargo Bank, National Association 0.305000% 1
51254
51254
51254
51254
------------------------------------------------------------------------------------------------------------------------------------
51254
51254
51468 Xxxxx Fargo Bank, National Association 0.305000% 1 The BSCMSI 2007-PWR17 Master Servicer is required to
make remittances of payments received on the RRI
Hotel Portfolio Pooled Mortgage Loan on the first
business day following its receipt of those
payments. The master servicing fee and other
scheduled administrative fees payable under the
applicable Non-Trust Servicing Agreement are
calculated at an aggregate rate of 0.01% per annum
on an Actual/360 Basis.
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
49393 Xxxxx Fargo Bank, National Association 0.505000% 1
51083 Xxxxx Fargo Bank, National Association 0.305000% 2
50637 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
50637
50637
50637
52097 Xxxxx Fargo Bank, National Association 0.305000% 1
50957 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
50382 Xxxxx Fargo Bank, National Association 0.305000% 2
52098 Xxxxx Fargo Bank, National Association 0.305000% 1
51420 Xxxxx Fargo Bank, National Association 0.305000% 1
51420
51420
------------------------------------------------------------------------------------------------------------------------------------
51383 Xxxxx Fargo Bank, National Association 0.305000% 2
51503 Xxxxx Fargo Bank, National Association 0.305000% 1
50469 Xxxxx Fargo Bank, National Association 0.305000% 1
50026 Xxxxx Fargo Bank, National Association 0.305000% 1
50467 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
50468 Xxxxx Fargo Bank, National Association 0.305000% 1
51633 Xxxxx Fargo Bank, National Association 0.305000% 1
50982 Xxxxx Fargo Bank, National Association 0.305000% 1
50492 Xxxxx Fargo Bank, National Association 0.705000% 1
51322 Xxxxx Fargo Bank, National Association 0.705000% 2
------------------------------------------------------------------------------------------------------------------------------------
48482 Xxxxx Fargo Bank, National Association 0.705000% 1
51094 Xxxxx Fargo Bank, National Association 0.305000% 1
51448 Xxxxx Fargo Bank, National Association 0.305000% 1
51232 Xxxxx Fargo Bank, National Association 0.305000% 1
50053 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
50776 Xxxxx Fargo Bank, National Association 0.305000% 2
50669 Xxxxx Fargo Bank, National Association 0.705000% 1
51574 Xxxxx Fargo Bank, National Association 0.305000% 1
49916 Xxxxx Fargo Bank, National Association 0.305000% 1
51723 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
51418 Xxxxx Fargo Bank, National Association 0.405000% 2
51732 Xxxxx Fargo Bank, National Association 0.305000% 1
51732
51732
51732
------------------------------------------------------------------------------------------------------------------------------------
51732
NON-TRUST-SERVICED
SELLER POOLED MORTGAGE
LOAN ID LOAN ACCRUAL
-----------------------------
51254
51254
51254
51254
51254
-----------------------------
51254
51254
51468 Actual/360 Basis
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
49393
51083
50637
-----------------------------
50637
50637
50637
52097
50957
-----------------------------
50382
52098
51420
51420
51420
-----------------------------
51383
51503
50469
50026
50467
-----------------------------
50468
51633
50982
50492
51322
-----------------------------
48482
51094
51448
51232
50053
-----------------------------
50776
50669
51574
49916
51723
-----------------------------
51418
51732
51732
51732
51732
-----------------------------
51732
SCHEDULE I-C
SCHEDULE OF WFB POOLED MORTGAGE LOANS
S-I-C-1
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., SERIES 2007-PWR18
MORTGAGE LOAN SCHEDULE
CMSA
SELLER CMSA PROPERTY
LOAN ID ID LOAN NO. NO. PROPERTY NAME (1) ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
510906942 1 1 DRA / Colonial Office Portfolio Various
510906942 1-a 0-000 Xxxxxxxx Inter. Business Ctr. 300, 400, 701, 801, 901 & 0000 Xxxxxxxxxxxxx
Xxxxxxx
510906942 1-b 1-002 Research Office Park 12301-4 Research Boulevard, Buildings III & IV
510906942 0-x 0-000 XX xx Xxxx Xxxx 100, 200 & 000 Xxxxxxxx Xxxxxx Xxxxxxx
510906942 1-d 0-000 Xxxxxxxx Xxxxx I & II 4300 & 0000 Xxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
510906942 1-e 1-005 CC at Colonnade 3500, 3700 & 0000 Xxxxxxxxx Xxxxxxx
510906942 1-f 0-000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx XX
000000000 0-x 0-000 XX Xxxx Xxxx Combined 000 Xxxxxx Xxxxxxxxx Xxxxxx
510906942 1-h 1-008 Concourse Center 3501, 3503, 3505 & 0000 Xxxxxxxx Xxxx
510906942 0-x 0-000 XX xx Xxxx Xxxx 600 000 Xxxxxxxx Xxxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
510906942 0-x 0-000 Xxxxxxxxxx Xxxxxx 0000, 0000 & 0000 Xxxxxxxxxx Center
510906942 1-k 1-011 International Office Park 1800 & 0000 Xxxxxxxxxxxxx Xxxx Xxxxx
510906942 0-x 0-000 Xxxxxxxx Xxxxxx xx Xxxxxxx 00000 XX Highway 19 North
510906942 1-m 0-000 Xxxxxxxx Xxxxxx at Blue Lake 0000 Xxxx Xxxx Xxxxx
510906942 1-n 1-014 Shops at Colonnade - Retail 0000-0000 Xxxxxxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
510906942 1-o 0-000 Xxxxxxxx Xxxxx 2101 6th Avenue North
510906942 1-p 0-000 Xxxxxxxxx 0000 Xxxxxxx Xxxx
510906942 1-q 0-000 Xxxxxxxx Office Building 901 Lake Destiny Drive
510906942 1-r 0-000 XXXX 1000 Building 0000 Xxxxxxxx Xxxxxx Xxxxx
510906942 1-s 1-019 One Independence Plaza One Independence Drive
------------------------------------------------------------------------------------------------------------------------------------
310907134 00 00 00-000 Trumbull Marriott 000 Xxxxxx Xxxx
310906921 25 25 00-000 Xxxxxxx Xxxxx 000 X. Xxxxxxx Xxxxxx
310906730 00 00 00-000 Camelot Acres 00000 X. Xxxxxxxxxx Xxxxxxx
310906734 27 27 00-000 Xxxxxxxx Xxxxx 0000 X. Xxxx Xxxx
310906732 00 00 00-000 Independence Hill 0000 Xxx Xxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------------
310906777 00 00 00-000 ANC - Tech park I & II 0000-0000 Xxxxxxxxx Xxxxxx
310907316 52 52 00-000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxx 0000 Xxxxxxxxxx Xxxxxxxxx
310907370 54 54 00-000 Xxxxxxxx Xxxxxx Xxx Xxxxxxx 00000-00000 E 00xx Xxxxxx and 1252 & 0000-0000
Xxxxxxxx Xxxxx
310907192 59 59 00-000 Xxxxx Xxxx Xxxxxx II 2950, 2970, 0000 Xxxxxxxxxx Xxxxx
310907504 60 60 Mountain City Industrial Portfolio Various
------------------------------------------------------------------------------------------------------------------------------------
310907504A 00-x 00-000 Xxxxxxxx Xxxx Xxxxxxxxxx - Xxxxxxxxx 0000 Xxxxxx Xxxxx
310907504B 00-x 00-000 Xxxxxxxx Xxxx Xxxxxxxxxx - Xxxxxx 0000 Xxxx 00xx Xxxxxx
310907328 61 61 00-000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 0000 Xxxx Xxxxx Xx.
310907369 00 00 00-000 Shady Willow Plaza 6261, 6271, 6281 & 0000 Xxxx Xxxx Xxx
310906645 65 65 00-000 Xxxxxxx Xxx & Xxxxxx Xxxxxxx 0000 Hawaiian Court
------------------------------------------------------------------------------------------------------------------------------------
310905047 00 00 00-000 Campus Business Park 801-815 South 336th Street, 33623-33761 0xx Xxxxxx
Xxxxx xxx 00000-00000 0xx Xxxxxx Xxxxx
310906960 70 70 00-000 Xxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxx Xxxxx
310907169 00 00 00-000 Holiday Inn Express Hotel 0000 Xxxxxxxx Xxxxx
310906198 00 00 00-000 McAllen Distribution Center 0000 Xxxxx Xxxxxxxxxxxxx Xxxxxxx
310905098 00 00 00-000 LA Fitness (Federal Way) 00000 Xxxxxxx Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
310906459 93 93 00-000 Xxx Xxxxxx Industrial Center (PSA) 0000 Xxxxxx Xxxxxx
310907208 00 00 00-000 Stor It Self Storage - Downey 0000 Xxxxxxxx Xxx
310906723 100 100 100-001 Crossroads Shopping Center - Charleston 0000 Xxxxxx Xxxxx Xxxx
310907282 104 104 000-000 Xxxxxxx Xxx - Xxxx, XX 000 Xxxxxxxx Xxxxx
310906903 107 107 107-001 Michael's - Mountain View 0000 Xxxxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------------
410907115 108 108 108-001 Let's Stor It - Rancho Cucamonga, CA 8866 Utica Avenue
310906813 111 111 111-001 Holiday Inn Express - San Antonio Airport North 00000 Xxxxxxx 000 Xxxxx
410907207 112 112 112-001 Stor It Self Storage - Long Beach 0000 Xxxx Xxxxx Xxxxxx
410907212 117 117 117-001 Stor It Self Storage - Costa Mesa 000 Xxxx 00xx Xxxxxx
310906812 123 123 123-001 Comfort Suites - Airport North 00000 XX Xxxxxxx 000 Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
410907161 126 126 126-001 1360 & 0000 00xx Xxxx Xxxxx 1360 & 0000 00xx Xxxx Xxxxx
410906901 000 000 000-000 Tall Pines Mobile Home Park 00000 Xxxxxx Xxxx Xxxx
410907270 128 128 128-001 VDC Medical Office 0000 Xxxxx Xxxxx
410906888 129 129 129-001 Watney Industrial 2349 and 0000 Xxxxx Xxxxxx Xxx
410907166 136 136 000-000 Xxxxxxxxx Xxxxxxx II 2701, 2702, 2721, 2801 and 0000 0xx Xxxxxx
Xxxxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
410906669 137 137 137-001 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
410906029 138 138 000-000 Xxxxxxxxx - XxXxxxxxx, XX 0000 Xxxxxx Xxxxx Xxxx
310906961 140 140 140-001 7401 Sunnyview 0000-0000 Xxxx Xxxxxxxxx Xxxxxx
410906449 141 141 141-001 Xxx Xxx Xxxxxx Xxx Xxx Xxxxxx
410906896 142 142 142-001 Lock Up II Self Storage 0000 Xxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------------
620907118 145 145 145-001 500 X. Xxxxxxx 000 X. Xxxxxxx Xxxxxx
410906950 148 148 148-001 0000-0000 Xxxxxxxxx Xxxx Xxxxxx 0000-0000 Xxxxxxxxx Xxxx
410906687 149 149 149-001 The Lodge at Timberhill 0000 Xxxxxxxxxx Xxxxx
410906707 150 150 150-001 Thomasville Furniture - Woodbury MN 0000 Xxxxxx Xxxx
410907004 152 152 153-001 Rite Aid - Waterford Township, MI 4350 Xxxxx Highway
------------------------------------------------------------------------------------------------------------------------------------
410906991 153 153 000-000 Xxxxx Xxxxxx Xxxxxxxxxx - X 00-00 Xxxx Xxxxxxx Xxxxxx
410907292 154 154 155-001 Piggly Wiggly - Watertown, WI 1330 Memorial Drive
410907329 155 155 000-000 Xxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxx Xxxxxx Xx.
410906884 156 156 157-001 Harbin and Airport 0000-0000 Xxxxxxx Xxxx and 000-000 Xxxxxx Xxxxxx
410907099 157 157 000-000 Xxxxxxxx Xxxxxx Retail 000-000 Xxxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
410906420 158 158 159-001 Practical Pig Self Storage 0000 Xxxxxxx 00 Xxxxx
410906268 159 159 160-001 Anaheim Professional Building 0000 Xxxx Xx Xxxxx Xxxxxx
410906624 160 160 161-001 Pacific Xxxx - Truckee 00000 Xxxx Xxxxx Xxxxxx
410906704 161 161 162-001 201 St. Xxxxxx 000 Xx. Xxxxxx Xxxxxx
410907327 163 163 164-001 Cypress Self Storage 00000 Xxxxxxx Xxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------------
620907117 164 164 165-001 0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx
310905141 165 165 166-001 Richmond Club Apartments 00000 Xxxxx Xxxxxx
410906992 166 166 000-000 Xxxxx Xxxxxx Apartments - A 000-000 X. 00xx Xxxxxx
310905068 167 167 000-000 Xxxxxxxxxxx Xxxxxxx XXX - Xxxx Xxxxx 0000 Xxxx Xxxxxxxxxx Xxxxxx Xxxx
620906150 168 168 169-001 Dal Tile Bakersfield 0000 Xxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------------
410906794 169 169 170-001 Morningside View Apartments 0000 Xxxx Xxxxxxx Xxxx
410906990 170 170 000-000 Xxxxx Xxxxxx Xxxxxxxxxx - X 000-000 X 0xx Xxx
410906987 171 171 000-000 Xxxxx Xxxxxx Xxxxxxxxxx - X 00 Xxxxxxxxxx Xxxxxx
410907123 172 172 173-001 Homes of Kings Way 1109 & 0000 Xxxxx Xxxxxxx
410907244 173 173 174-001 City of Xxxxxxx Xxxxxx Xxxxxxxx 0000 X. 0xx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
620907102 174 174 175-001 Xxxx Automation Building 0000 Xxxxxxx Xxxx
410907452 175 175 000-000 Xxxxxx Xxxxx Xxxxxxxxx X and O 0 Xxxxxx Xxxxx, Xxxxx. N & O
620906242 176 176 177-001 Oneida Retail Center 0000 X. Xxxxxx Xxxxxx
410907520 178 178 179-001 Xxx Xxxx XXX 0000 Xxxx Xxxxx Xxxx 00
410907173 179 179 180-001 Walgreens - Milwaukee 0000 Xxxx Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
410906989 180 180 000-000 Xxxxx Xxxxxx Apartments - I 000 X 00xx Xxx
410906988 181 181 000-000 Xxxxx Xxxxxx Xxxxxxxxxx - X 0000 Xxxxxx Xx
930907291 183 183 000-000 Xxxxxx Xxxx - Xxxxx Xxxxx 0000 Xxxxxxxxxx Xxxx
410907238 184 184 000-000 Xxxxx Xxxxxx Xxxxxxxxxx - X 00 X 00xx Xxx
930906085 185 185 Xxxxxx'x - Xxxxxxxx & Saraland Portfolio Various
------------------------------------------------------------------------------------------------------------------------------------
930906085A 185-a 186-001 Xxxxxx'x - Xxxxxxxx, AL 0000 Xxxxx Xxxxxxxx Xx
930906085B 185-b 000-000 Xxxxxx'x - Xxxxxxxx, XX 000 Xxxxxxx Xxxxx Xx
CUT-OFF MONTHLY MONTHLY FIRST
SELLER ORIGINAL DATE DEBT DEBT SERVICE PAYMENT
LOAN ID CITY STATE ZIP CODE BALANCE ($) BALANCE ($) (3) SERVICE ($)(4)(5) AFTER IO ($)(4)(5) DATE
------------------------------------------------------------------------------------------------------------------------------------
510906942 Various Various Various 247,302,419 247,302,419 1,172,196.29 NAP 8/1/2007
510906942 Xxxx Xxxx XX 00000 34,630,982 34,630,982
510906942 Xxxxxx XX 00000 26,447,908 26,447,908
510906942 Xxxx Xxxx XX 00000 23,265,602 23,265,602
510906942 Xxxxx XX 00000 20,379,333 20,379,333
------------------------------------------------------------------------------------------------------------------------------------
510906942 Xxxxxxxxxx XX 00000 19,575,196 19,575,196
510906942 Xxxxxxx XX 00000 15,561,000 15,561,000
510906942 Xxxx Xxxx XX 00000 14,764,167 14,764,167
510906942 Xxxxx XX 00000 12,254,067 12,254,067
510906942 Xxxx Xxxx XX 00000 11,926,964 11,926,964
------------------------------------------------------------------------------------------------------------------------------------
510906942 Xxxxxxxxxx XX 00000 9,226,014 9,226,014
510906942 Xxxxxxxxxx XX 00000 8,717,915 8,717,915
510906942 Xxxxxxxxxx XX 00000 8,370,268 8,370,268
510906942 Xxxxxxxxxx XX 00000 7,380,812 7,380,812
510906942 Xxxxxxxxxx XX 00000 7,225,554 7,225,554
------------------------------------------------------------------------------------------------------------------------------------
510906942 Xxxxxxxxxx XX 00000 6,712,260 6,712,260
510906942 Xxxxxxxxx XX 00000 6,685,518 6,685,518
510906942 Xxxxxxxx XX 00000 5,273,750 5,273,750
510906942 Xxxx Xxxx XX 00000 4,679,862 4,679,862
510906942 Xxxxxxxxxx XX 00000 4,225,247 4,225,247
------------------------------------------------------------------------------------------------------------------------------------
310907134 Xxxxxxxx XX 00000 30,000,000 30,000,000 162,475.69 187,848.24 10/1/2007
310906921 Xxxxxxxxxx XX 00000 24,380,000 24,380,000 135,334.40 155,222.24 10/1/2007
310906730 Xxxxxxxxxx XX 00000 12,909,000 12,909,000 69,040.74 80,155.81 10/1/2007
310906734 Xx. Xxxx XX 00000 5,615,000 5,615,000 30,030.50 34,865.20 10/1/2007
310906732 Xxxxxxxxxx XX 00000 4,919,000 4,919,000 26,308.11 30,543.53 10/1/2007
------------------------------------------------------------------------------------------------------------------------------------
310906777 Xxxxxxxxx XX 00000 20,600,000 20,600,000 105,126.76 124,037.67 10/1/2007
310907316 Xxxxx Xxxxxxxxxx XX 00000 12,300,000 12,281,303 80,186.80 NAP 11/1/2007
310907370 Xxx Xxxxxxx XX 00000 11,800,000 11,800,000 65,302.89 74,972.46 11/1/2007
310907192 Xxxxxxx XX 00000 10,600,000 10,600,000 55,796.00 65,128.21 12/1/2007
310907504 Various Various Various 10,300,000 10,290,992 66,258.79 NAP 12/1/2007
------------------------------------------------------------------------------------------------------------------------------------
310907504A Xxxxxxxxx XX 00000 6,250,000 6,244,534
310907504B Xxxxxx XX 00000 4,050,000 4,046,458
310907328 Xxxxxxxxx XX 00000 10,190,000 10,190,000 58,975.80 66,770.91 11/1/2007
310907369 Xxxxxxxxx XX 00000 9,725,000 9,725,000 54,312.55 62,173.81 12/1/2007
310906645 Xxxxxxx XX 00000 9,000,000 9,000,000 51,404.17 58,433.66 12/1/2007
------------------------------------------------------------------------------------------------------------------------------------
310905047 Xxxxxxx Xxx XX 00000 8,950,000 8,941,073 53,602.25 NAP 12/1/2007
310906960 Xxxxxxx XX 00000 8,700,000 8,700,000 46,897.43 54,305.14 9/1/2007
310907169 Xxxxxxxxx XX 00000 8,200,000 8,200,000 46,211.37 52,749.71 11/1/2007
310906198 XxXxxxx XX 00000 7,630,000 7,605,914 50,800.88 NAP 10/1/2007
310905098 Xxxxxxx Xxx XX 00000 7,400,000 7,400,000 38,701.83 45,274.69 12/1/2007
------------------------------------------------------------------------------------------------------------------------------------
310906459 Xxxxxxx XX 00000 6,500,000 6,500,000 31,029.22 NAP 9/1/2007
310907208 Xxxxxx XX 00000 6,000,000 6,000,000 30,898.26 36,340.31 11/1/2007
310906723 Xxxxxxxxxx XX 00000 5,935,000 5,914,425 36,581.43 NAP 9/1/2007
310907282 Xxxx XX 00000 5,625,000 5,625,000 35,553.83 NAP 1/1/2008
310906903 Xxxxxxxx Xxxx XX 00000 5,400,000 5,391,190 34,131.68 NAP 11/1/2007
------------------------------------------------------------------------------------------------------------------------------------
410907115 Xxxxxx Xxxxxxxxx XX 00000 5,200,000 5,200,000 29,392.64 33,519.97 11/1/2007
310906813 Xxx Xxxxxxx XX 00000 5,025,000 5,025,000 28,541.45 32,500.25 10/1/2007
410907207 Xxxx Xxxxx XX 00000 5,000,000 5,000,000 25,537.33 30,122.34 11/1/2007
410907212 Xxxxx Xxxx XX 00000 4,800,000 4,800,000 24,515.83 28,917.44 11/1/2007
310906812 Xxx Xxxxxxx XX 00000 4,375,000 4,375,000 25,034.34 28,441.63 10/1/2007
------------------------------------------------------------------------------------------------------------------------------------
410907161 Xxxxxxx XX 00000 4,175,000 4,168,109 26,251.71 NAP 11/1/2007
410906901 Xxxxx Xxxxxx XX 00000 4,150,000 4,150,000 21,949.85 NAP 11/1/2007
410907270 Xxxxxxxxx XX 00000 4,125,000 4,121,459 26,795.81 NAP 12/1/2007
410906888 Xxxxxxxxx XX 00000 4,040,000 4,040,000 20,719.50 NAP 10/1/2007
410907166 Xxxxxxxx XX 00000 3,492,000 3,486,102 21,728.47 NAP 11/1/2007
------------------------------------------------------------------------------------------------------------------------------------
410906669 Xxx Xxxx XX 00000 3,400,000 3,400,000 18,241.55 NAP 9/1/2007
410906029 XxXxxxxxx XX 00000 3,370,000 3,370,000 16,884.71 20,053.44 12/1/2007
310906961 Xxxxxxx XX 00000 3,200,000 3,200,000 17,276.67 19,995.24 10/1/2007
410906449 Xxxxxxxxx XX 00000 3,200,000 3,200,000 18,060.74 20,606.46 10/1/2007
410906896 Xxxxxxxxxxx XX 00000 3,200,000 3,197,141 20,352.61 NAP 12/1/2007
------------------------------------------------------------------------------------------------------------------------------------
620907118 Xxxxxxx XX 00000 3,050,000 3,047,243 19,278.08 NAP 12/1/2007
410906950 Xxxxxxx XX 00000 2,850,000 2,847,403 17,939.03 NAP 12/1/2007
410906687 Xxx Xxxxxxx XX 00000 2,584,000 2,584,000 14,736.88 16,759.77 10/1/2007
410906707 Xxxxxxxx XX 00000 2,510,000 2,510,000 14,017.94 16,046.92 9/1/2007
410907004 Xxxxxxxxx Xxxxxxxx XX 00000 2,483,000 2,475,408 16,187.30 NAP 9/1/2007
------------------------------------------------------------------------------------------------------------------------------------
410906991 Xxxxxxxx XX 00000 2,425,000 2,425,000 13,440.79 15,423.46 11/1/2007
410907292 Xxxxxxxxx XX 00000 2,395,000 2,395,000 13,436.39 15,359.21 12/1/2007
410907329 Xxxxxxxxxxx XX 00000 2,300,000 2,297,900 14,462.02 NAP 12/1/2007
410906884 Xxxxxx Xxxx XX 00000 2,300,000 2,293,952 14,311.42 NAP 10/1/2007
410907099 Xxxxxxxxxx XX 00000 2,275,000 2,275,000 12,715.12 14,552.04 10/1/2007
------------------------------------------------------------------------------------------------------------------------------------
410906420 Xxxxxx Xxxx XX 00000 2,240,000 2,234,336 14,202.55 NAP 10/1/2007
410906268 Xxxxxxx XX 00000 2,200,000 2,200,000 11,106.31 13,154.77 10/1/2007
410906624 Xxxxxxx XX 00000 2,050,000 2,043,259 12,943.92 NAP 9/1/2007
000000000 Xxxxxx XX 00000 2,020,000 2,015,079 13,034.62 NAP 10/1/2007
410907327 Xxxxxxx XX 00000 1,950,000 1,950,000 11,236.42 12,738.53 11/1/2007
------------------------------------------------------------------------------------------------------------------------------------
620907117 Xxxxx Xxxxx XX 00000 1,920,000 1,916,027 12,684.88 NAP 11/1/2007
310905141 Xxxxxxxx XX 00000 1,900,000 1,898,042 11,172.52 NAP 12/1/2007
410906992 Xxxxxxxx XX 00000 1,852,000 1,852,000 10,264.88 11,779.07 11/1/2007
310905068 Ft. Xxxxx XX 00000 1,800,000 1,798,194 10,745.66 NAP 12/1/2007
620906150 Xxxxxxxxxxx XX 00000 1,750,000 1,746,771 10,447.17 NAP 11/1/2007
------------------------------------------------------------------------------------------------------------------------------------
410906794 Xxxxxxxx XX 00000 1,741,000 1,735,889 11,547.86 NAP 9/1/2007
410906990 Xxxxxxxx XX 00000 1,653,000 1,653,000 9,252.69 10,584.34 11/1/2007
410906987 Xxxxxxxx XX 00000 1,553,000 1,553,000 8,607.65 9,877.38 11/1/2007
410907123 Xxxxxx XX 00000 1,435,000 1,433,682 8,994.81 NAP 12/1/2007
410907244 Xxxxxxx XX 00000 1,410,000 1,410,000 8,136.71 9,220.34 11/1/2007
------------------------------------------------------------------------------------------------------------------------------------
620907102 Xxxxxxxxx Xxxxx XX 00000 1,400,000 1,400,000 9,248.51 NAP 1/1/2008
410907452 Xxxxxxxx XX 00000 1,300,000 1,298,790 8,089.06 NAP 12/1/2007
620906242 Xxxxxxxxxxx XX 00000 1,300,000 1,296,395 8,296.63 NAP 11/1/2007
410907520 Xxxx Xxxxxxx XX 00000 1,175,000 1,172,633 8,829.80 NAP 12/1/2007
410907173 Xxxxxxxxx XX 00000 1,075,000 1,074,019 6,759.42 NAP 12/1/2007
------------------------------------------------------------------------------------------------------------------------------------
410906989 Xxxxxxxx XX 00000 1,033,000 1,033,000 5,808.41 6,634.92 11/1/2007
410906988 Xxxxxxxx XX 00000 1,018,000 1,018,000 5,698.27 6,518.36 11/1/2007
930907291 Xxxxx Xxxxx XX 00000 915,000 912,772 6,258.43 NAP 11/1/2007
410907238 Xxxxxxxx XX 00000 846,000 846,000 4,689.03 5,380.72 11/1/2007
930906085 Various AL Various 685,000 682,004 4,955.64 NAP 9/1/2007
------------------------------------------------------------------------------------------------------------------------------------
930906085A Xxxxxxxx AL 36610 342,500 341,002
930906085B Xxxxxxxx XX 00000 342,500 341,002
INTEREST MATURITY ARD ORIGINAL STATED REMAINING ORIGINAL REMAINING REMAINING
SELLER INTEREST ACCRUAL DATE LOAN TERM TO MATURITY TERM TO MATURITY AMORTIZATION AMORTIZATION INTEREST ONLY
LOAN ID RATE (4) BASIS OR ARD (Y/N) OR ARD (MOS.) OR ARD (MOS.) TERM (MOS.)(4) TERM (MOS.)(4) PERIOD (MOS.)
------------------------------------------------------------------------------------------------------------------------------------
510906942 5.6100% Actual/360 7/1/2014 No 84 79 0 0 0
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
510906942
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
510906942
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
510906942
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
310907134 6.4100% Actual/360 9/1/2017 No 120 117 360 360 360
310906921 6.5700% Actual/360 9/1/2017 No 120 117 360 360 360
310906730 6.3300% Actual/360 9/1/2017 No 120 117 360 360 360
310906734 6.3300% Actual/360 9/1/2017 No 120 117 360 360 360
310906732 6.3300% Actual/360 9/1/2017 No 120 117 360 360 360
------------------------------------------------------------------------------------------------------------------------------------
310906777 6.0400% Actual/360 9/1/2014 No 84 81 360 360 360
310907316 6.8000% Actual/360 10/1/2012 No 60 58 360 358 360
310907370 6.5500% Actual/360 10/1/2017 No 120 118 360 360 360
310907192 6.2300% Actual/360 11/1/2017 No 120 119 360 360 360
310907504 6.6700% Actual/360 11/1/2017 No 120 119 360 359 360
------------------------------------------------------------------------------------------------------------------------------------
310907504A
310907504B
310907328 6.8500% Actual/360 10/1/2017 Yes 120 118 360 360 360
310907369 6.6100% Actual/360 11/1/2017 No 120 119 360 360 360
310906645 6.7600% Actual/360 11/1/2017 No 120 119 360 360 360
------------------------------------------------------------------------------------------------------------------------------------
310905047 5.9900% Actual/360 11/1/2017 No 120 119 360 359 360
310906960 6.3800% Actual/360 8/1/2017 No 120 116 360 360 360
310907169 6.6700% Actual/360 10/1/2017 No 120 118 360 360 360
310906198 6.6600% Actual/360 9/1/2017 No 120 117 324 321 324
310905098 6.1900% Actual/360 11/1/2017 No 120 119 360 360 360
------------------------------------------------------------------------------------------------------------------------------------
310906459 5.6500% Actual/360 8/1/2017 No 120 116 0 0 0
310907208 6.0950% Actual/360 10/1/2017 No 120 118 360 360 360
310906723 6.2600% Actual/360 8/1/2017 No 120 116 360 356 360
310907282 6.5000% Actual/360 12/1/2017 No 120 120 360 360 360
310906903 6.5000% Actual/360 10/1/2017 Yes 120 118 360 358 360
------------------------------------------------------------------------------------------------------------------------------------
410907115 6.6900% Actual/360 10/1/2017 No 120 118 360 360 360
310906813 6.7225% Actual/360 9/1/2017 No 120 117 360 360 360
410907207 6.0450% Actual/360 10/1/2017 No 120 118 360 360 360
410907212 6.0450% Actual/360 10/1/2017 No 120 118 360 360 360
310906812 6.7725% Actual/360 9/1/2017 No 120 117 360 360 360
------------------------------------------------------------------------------------------------------------------------------------
410907161 6.4500% Actual/360 10/1/2017 No 120 118 360 358 360
410906901 6.2600% Actual/360 10/1/2017 No 120 118 0 0 0
410907270 6.7650% Actual/360 11/1/2017 No 120 119 360 359 360
410906888 6.0700% Actual/360 9/1/2017 No 120 117 0 0 0
410907166 6.3500% Actual/360 10/1/2017 No 120 118 360 358 360
------------------------------------------------------------------------------------------------------------------------------------
410906669 6.3500% Actual/360 8/1/2014 No 84 80 0 0 0
410906029 5.9300% Actual/360 11/1/2017 No 120 119 360 360 360
310906961 6.3900% Actual/360 9/1/2017 No 120 117 360 360 360
410906449 6.6800% Actual/360 9/1/2017 No 120 117 360 360 360
410906896 6.5600% Actual/360 11/1/2017 No 120 119 360 359 360
------------------------------------------------------------------------------------------------------------------------------------
620907118 6.5000% Actual/360 11/1/2017 No 120 119 360 359 360
410906950 6.4600% Actual/360 11/1/2017 Yes 120 119 360 359 360
410906687 6.7500% Actual/360 9/1/2012 No 60 57 360 360 360
410906707 6.6100% Actual/360 8/1/2017 No 120 116 360 360 360
410907004 6.8000% Actual/360 8/1/2017 No 120 116 360 356 360
------------------------------------------------------------------------------------------------------------------------------------
410906991 6.5600% Actual/360 10/1/2017 No 120 118 360 360 360
410907292 6.6400% Actual/360 11/1/2017 No 120 119 360 360 360
410907329 6.4500% Actual/360 11/1/2017 No 120 119 360 359 360
410906884 6.3500% Actual/360 9/1/2017 No 120 117 360 357 360
410907099 6.6150% Actual/360 9/1/2017 No 120 117 360 360 360
------------------------------------------------------------------------------------------------------------------------------------
410906420 6.5300% Actual/360 9/1/2017 No 120 117 360 357 360
410906268 5.9750% Actual/360 9/1/2017 No 120 117 360 360 360
410906624 6.4900% Actual/360 8/1/2017 No 120 116 360 356 360
410906704 6.7000% Actual/360 9/1/2017 No 120 117 360 357 360
410907327 6.8200% Actual/360 10/1/2017 No 120 118 360 360 360
------------------------------------------------------------------------------------------------------------------------------------
620907117 6.5800% Actual/360 10/1/2017 No 120 118 324 322 324
310905141 5.8200% Actual/360 11/1/2017 No 120 119 360 359 360
410906992 6.5600% Actual/360 10/1/2017 No 120 118 360 360 360
310905068 5.9600% Actual/360 11/1/2017 No 120 119 360 359 360
620906150 5.9600% Actual/360 10/1/2017 No 120 118 360 358 360
------------------------------------------------------------------------------------------------------------------------------------
410906794 6.9700% Actual/360 8/1/2017 No 120 116 360 356 360
410906990 6.6250% Actual/360 10/1/2017 No 120 118 360 360 360
410906987 6.5600% Actual/360 10/1/2017 No 120 118 360 360 360
410907123 6.4200% Actual/360 11/1/2017 No 120 119 360 359 360
410907244 6.8300% Actual/360 10/1/2017 No 120 118 360 360 360
------------------------------------------------------------------------------------------------------------------------------------
620907102 6.9300% Actual/360 12/1/2012 No 60 60 360 360 360
410907452 6.3500% Actual/360 11/1/2017 No 120 119 360 359 360
620906242 5.9000% Actual/360 10/1/2017 No 120 118 300 298 300
410907520 6.6000% Actual/360 11/1/2017 No 120 119 240 239 240
410907173 6.4500% Actual/360 11/1/2017 No 120 119 360 359 360
------------------------------------------------------------------------------------------------------------------------------------
410906989 6.6550% Actual/360 10/1/2017 No 120 118 360 360 360
410906988 6.6250% Actual/360 10/1/2017 No 120 118 360 360 360
930907291 6.6400% Actual/360 10/1/2017 No 120 118 300 298 300
410907238 6.5600% Actual/360 10/1/2017 No 120 118 360 360 360
930906085 7.2600% Actual/360 8/1/2017 No 120 116 300 296 300
------------------------------------------------------------------------------------------------------------------------------------
930906085A
930906085B
CROSSED PREPAYMENT MORTGAGE PAYMENT GRACE
SELLER WITH PROVISIONS OWNERSHIP LOAN ADMINISTRATIVE PAYMENT PERIOD EVENT OF
LOAN ID OTHER LOANS (# OF PAYMENTS) (8) INTEREST SELLER (2) FEE RATE DATE LATE FEE (DAYS)
-----------------------------------------------------------------------------------------------------------------------------
510906942 0 LO(29)/Defeasance(51)/Open(4) Fee WFB 0.03148% 1st 7
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
-----------------------------------------------------------------------------------------------------------------------------
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
-----------------------------------------------------------------------------------------------------------------------------
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
-----------------------------------------------------------------------------------------------------------------------------
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
510906942 Fee WFB
-----------------------------------------------------------------------------------------------------------------------------
310907134 360 LO(27)/Flex(89)/Open(4) Fee WFB 0.03148% 1st 5
310906921 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310906730 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310906734 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310906732 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
310906777 360 LO(27)/Defeasance(53)/Open(4) Fee WFB 0.03148% 1st 5
310907316 358 LO(26)/Defeasance(31)/Open(3) Fee WFB 0.03148% 1st 5
310907370 360 LO(35)/Defeasance(81)/Open(4) Fee/Leasehold WFB 0.03148% 1st 5
310907192 360 LO(35)/Flex(81)/Open(4) Fee WFB 0.03148% 1st 5
310907504 359 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
310907504A Fee WFB
310907504B Fee WFB
310907328 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310907369 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310906645 360 LO(35)/Defeasance(83)/Open(2) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
310905047 359 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310906960 360 LO(28)/Defeasance(88)/Open(4) Fee WFB 0.03148% 1st 5
310907169 360 LO(35)/Defeasance(83)/Open(2) Fee WFB 0.03148% 1st 5
310906198 321 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310905098 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
310906459 0 LO(28)/Defeasance(88)/Open(4) Fee WFB 0.03148% 1st 5
310907208 360 LO(35)/Flex(81)/Open(4) Fee WFB 0.03148% 1st 5
310906723 356 LO(28)/Defeasance(88)/Open(4) Fee WFB 0.03148% 1st 7
310907282 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310906903 358 LO(35)/Flex(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
410907115 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310906813 360 LO(35)/Flex(81)/Open(4) Fee WFB 0.03148% 1st 8
410907207 360 LO(35)/GRTR1% or YM(81)/Open(4) Fee WFB 0.03148% 1st 5
410907212 360 LO(35)/GRTR1% or YM(81)/Open(4) Fee WFB 0.03148% 1st 5
310906812 360 LO(35)/Flex(81)/Open(4) Fee WFB 0.03148% 1st 8
-----------------------------------------------------------------------------------------------------------------------------
410907161 358 LO(35)/Flex(81)/Open(4) Fee WFB 0.03148% 1st 5
410906901 0 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410907270 359 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410906888 0 LO(35)/Flex(81)/Open(4) Fee WFB 0.03148% 1st 5
410907166 358 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
410906669 0 LO(35)/Flex(45)/Open(4) Fee WFB 0.03148% 1st 5
410906029 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310906961 360 LO(27)/Defeasance(89)/Open(4) Fee WFB 0.03148% 1st 5
410906449 360 LO(35)/Defeasance(83)/Open(2) Fee WFB 0.03148% 1st 5
410906896 359 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
620907118 359 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.08148% 1st 5
410906950 359 LO(35)/Flex(81)/Open(4) Fee WFB 0.03148% 1st 5
410906687 360 LO(35)/Flex(21)/Open(4) Fee WFB 0.03148% 1st 5
410906707 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410907004 356 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
410906991 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410907292 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410907329 359 LO(25)/Flex(88)/Open(7) Fee WFB 0.03148% 1st 5
410906884 357 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410907099 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
410906420 357 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410906268 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410906624 356 LO(35)/Flex(81)/Open(4) Fee WFB 0.05148% 1st 5
410906704 357 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410907327 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
620907117 322 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.08148% 1st 5
310905141 359 LO(25)/Defeasance(91)/Open(4) Fee WFB 0.03148% 1st 5
410906992 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
310905068 359 LO(25)/Defeasance(91)/Open(4) Fee WFB 0.03148% 1st 5
620906150 358 LO(35)/Flex(81)/Open(4) Fee WFB 0.12148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
410906794 356 LO(35)/Defeasance(83)/Open(2) Fee WFB 0.03148% 1st 5
410906990 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410906987 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410907123 359 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410907244 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
620907102 360 LO(35)/Flex(21)/Open(4) Fee WFB 0.03148% 1st 5
410907452 359 LO(35)/Flex(81)/Open(4) Fee WFB 0.10148% 1st 5
620906242 298 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.08148% 1st 5
410907520 239 LO(35)/GRTR1% or YM(81)/Open(4) Fee WFB 0.03148% 1st 5
410907173 359 LO(35)/Flex(81)/Open(4) Fee WFB 0.10148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
410906989 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
410906988 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
930907291 298 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.10148% 1st 5
410907238 360 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03148% 1st 5
930906085 296 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.15148% 1st 5
-----------------------------------------------------------------------------------------------------------------------------
930906085A Fee WFB
930906085B Fee WFB
SELLER LETTER OF
LOAN ID CREDIT BORROWER
------------------------------------------------------------------------------------------------------------------------------------
510906942 DRA/CLP Townpark Office Orlando LLC, DRA/CLP 600 Townpark Office Orlando LLC,
DRA/CLP Heathrow Orlando LLC, DRA/CLP Heathrow Orlando 1000 LLC,
DRA/CLP 901 Xxxxxxxx Xxxxxxx LLC, DRA/CLP Bayside Tampa LLC, DRA/CLP CP Tampa LLC,
DRA/CLP Concourse Center Tampa LLC, DRA/CLP Colonnade Office Birmingham LLC,
DRA/CLP Blue Lake Birmingham LLC, DRA/CLP Downtown Plaza Birmingham LLC,
DRA/CLP Independence Plaza Birmingham LLC, DRA/CLP International Park Birmingham LLC,
DRA/CLP Riverchase Center Birmingham LLC, DRA/CLP The Peachtree Atlanta LLC,
DRA/CLP Esplanade LP, DRA/CLP Research Park Plaza Austin LP,
DRA/CLP Townpark Retail Orlando LLC, DRA/CLP Colonnade Retail Birmingham LLC
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
510906942
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
510906942
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
510906942
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
310907134 Parallel Post Real Estate, LLC
310906921 Cookeville Retail Holdings, LLC
310906730 Economic Occupancy Holdback LOC
($985,000) Camelot Acres MHC, LLC
310906734 Pheasant Ridge Borrower, LLC
310906732 Independence Hill MHC, LLC
------------------------------------------------------------------------------------------------------------------------------------
310906777 Letter of Credit ($636,312) Green Valley Tech Park, LLC
310907316 North Candle, LLC
310907370 Occupancy Impound LOC ($125,000) Xxxxx Ventures, LLC
310907192 AERO-TECH INVESTMENTS, LLC
310907504 MOUNTCM (CO) QRS 16-111, INC. and MCM (TN) LLC
------------------------------------------------------------------------------------------------------------------------------------
310907504A
310907504B
310907328 SIMVEST REAL ESTATE VII LLC, and SIMASH LLC
310907369 Occupancy Impound LOC ($130,000) Xxxxx Ventures, LLC
310906645 Pinnacle Holdings - III, LLC
------------------------------------------------------------------------------------------------------------------------------------
310905047 Campus BP I, LLC
310906960 Midstate Xxxxx Building No. 3, LLC
310907169 Xxxxxxx Lodging LP
310906198 6800 International, LTD.
310905098 Ashton Redondo Property, LLC
------------------------------------------------------------------------------------------------------------------------------------
310906459 BBIC Investors, LLC
310907208 XXXXX DEVELOPMENT COMPANY, LLC
310906723 Crossroads Investors Limited Partnership
310907282 KIERTAN, INC.
310906903 BUSINESS VENTURES, LLC
------------------------------------------------------------------------------------------------------------------------------------
410907115 8866 Utica, LLC
310906813 Preferred Hospitality, Ltd.
410907207 Stor-It Long Beach, LLC
410907212 Stor-It Costa Mesa, LLC
310906812 Hospitality Development Group, L.C.
------------------------------------------------------------------------------------------------------------------------------------
410907161 Airport Business Center, a California limited partnership
410906901 Golden Star MHP, LP
410907270 VDC (TX) QRS 16-110, INC.
410906888 Xxxxxx Xxxxxxxxxx 0, XXX, Xxxxxx Industrial 2, LLC, Xxxxxx Xxxxxxxxxx 0,
XXX, Xxxxxx Industrial 4, LLC, and Xxxxxx Xxxxxxxxxx 0, XXX
000000000 Xxxxxxxxx Xxxxxxx II, LLC
------------------------------------------------------------------------------------------------------------------------------------
410906669 Georgica Holdings Co.,LLC
410906029 Xxxxxx Beach, LLC
310906961 XXXXX INDUSTRIAL SVBP, LLC
410906449 Xxx Xxx Xxxxxx Realty Associates, L.L.C.
410906896 LOCKUP II, LLC
------------------------------------------------------------------------------------------------------------------------------------
620907118 500 South Xxxxxxx, LLC
410906950 KS-616, LLC
410906687 Regional Investors, LLC
410906707 JSAS, LLC, Woodbury-Palm LLC, Woodbury-CRS LLC, Woodbury-SIS LLC
410907004 Third World LLC
------------------------------------------------------------------------------------------------------------------------------------
410906991 42 W. Oakland LLC
410907292 Xxxxx Watertown, LLC
410907329 Parkwood Plaza Townhomes, L.C.
410906884 Modoco, LLC
410907099 Xxxxxxxx Street Building LLC
------------------------------------------------------------------------------------------------------------------------------------
410906420 Practical Pig Storage, Inc.
410906268 0000 Xx Xxxxx Ave, LLC
410906624 Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx as co-trustees of the Xxxxx X. Xxxxxx and
Xxxxx X. Xxxxxx 1996 Trust
410906704 St. Xxxxxx St. Project, L.L.C.
410907327 Cypress MS1, LLC, and Cypress MS2, LLC
------------------------------------------------------------------------------------------------------------------------------------
620907117 0000 Xxxxxxxxx Xxxxxx, LLC
310905141 AR Apartment Associates, LLC
410906992 Xxxxxxxxxx Xxxxxx 0000, LLC
310905068 CSV Fort Xxxxx, LLC
620906150 Xxxx Industrial, LLC
------------------------------------------------------------------------------------------------------------------------------------
410906794 APMORNINGSIDE, LLC
410906990 000 X. Xxxxxx LLC
410906987 34 Xxxxxxxxxx LLC
410907123 Xxxxx Xxxxx Properties, LLC
410907244 AZ4 Partners, LLC
------------------------------------------------------------------------------------------------------------------------------------
620907102 Xxxx Automation Property Holdings, LLC
410907452 Xxxxxx Court Partners, a California General Partnership
620906242 0000 X Xxxxxx Xxxxxx, XXX
000000000 Xxxxxx Xxxxxx Associates Limited Partnership
410907173 Villanova Group, LLC
------------------------------------------------------------------------------------------------------------------------------------
410906989 270 E. Twelfth LLC
410906988 1770 Summit LLC
930907291 9827 Bluebonnet, LLC
410907238 00 X. Xxxxxxxxxx LLC
930906085 Bantay Enterprises LLC
------------------------------------------------------------------------------------------------------------------------------------
930906085A
930906085B
NON-TRUST-
MASTER LOAN GROUP NON-TRUST-SERVICED SERVICED POOLED
SELLER MASTER SERVICER (ONE OR POOLED MORTGAGE LOAN MORTGAGE LOAN
LOAN ID SERVICER FEE RATE TWO) APPLICABLE RATE ACCRUAL
------------------------------------------------------------------------------------------------------------------------------------
510906942 Xxxxx Fargo Bank, National Association 0.305000% 1 The MLMT 2007-C1 Master Servicer is
required to make remittances of payments
received on the applicable Non-Trust-
Serviced Pooled Mortgage Loan monthly on
the second business day following the
due date in each month or, in connection
with any late payment of a scheduled
monthly paymActual/360 Basisipal
prepayment, the business day following
the MLMT 2007-C1 Master Servicer's
receipt of such late payment or
prepayment. The master servicing fee and
other scheduled administrative fees
payable under the applicable Non-Trust
Servicing Agreement are calculated at an
aggregate rate of 0.02% per annum on an
Actual/360 Basis (in the case of the DRA
/ Colonial Office Portfolio Pooled
Mortgage Loan).
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
510906942
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
510906942
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
510906942
510906942
510906942
510906942
510906942
------------------------------------------------------------------------------------------------------------------------------------
310907134 Xxxxx Fargo Bank, National Association 0.305000% 1
310906921 Xxxxx Fargo Bank, National Association 0.305000% 1
310906730 Xxxxx Fargo Bank, National Association 0.305000% 2
310906734 Xxxxx Fargo Bank, National Association 0.305000% 2
310906732 Xxxxx Fargo Bank, National Association 0.305000% 2
------------------------------------------------------------------------------------------------------------------------------------
310906777 Xxxxx Fargo Bank, National Association 0.305000% 1
310907316 Xxxxx Fargo Bank, National Association 0.305000% 1
310907370 Xxxxx Fargo Bank, National Association 0.305000% 1
310907192 Xxxxx Fargo Bank, National Association 0.305000% 1
310907504 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
310907504A
310907504B
310907328 Xxxxx Fargo Bank, National Association 0.305000% 1
310907369 Xxxxx Fargo Bank, National Association 0.305000% 1
310906645 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
310905047 Xxxxx Fargo Bank, National Association 0.305000% 1
310906960 Xxxxx Fargo Bank, National Association 0.305000% 1
310907169 Xxxxx Fargo Bank, National Association 0.305000% 1
310906198 Xxxxx Fargo Bank, National Association 0.305000% 1
310905098 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
310906459 Xxxxx Fargo Bank, National Association 0.305000% 1
310907208 Xxxxx Fargo Bank, National Association 0.305000% 1
310906723 Xxxxx Fargo Bank, National Association 0.305000% 1
310907282 Xxxxx Fargo Bank, National Association 0.305000% 1
310906903 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
410907115 Xxxxx Fargo Bank, National Association 0.305000% 1
310906813 Xxxxx Fargo Bank, National Association 0.305000% 1
410907207 Xxxxx Fargo Bank, National Association 0.305000% 1
410907212 Xxxxx Fargo Bank, National Association 0.305000% 1
310906812 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
410907161 Xxxxx Fargo Bank, National Association 0.305000% 1
410906901 Xxxxx Fargo Bank, National Association 0.305000% 2
410907270 Xxxxx Fargo Bank, National Association 0.305000% 1
410906888 Xxxxx Fargo Bank, National Association 0.305000% 1
410907166 Xxxxx Fargo Bank, National Association 0.305000% 2
------------------------------------------------------------------------------------------------------------------------------------
410906669 Xxxxx Fargo Bank, National Association 0.305000% 2
410906029 Xxxxx Fargo Bank, National Association 0.305000% 1
310906961 Xxxxx Fargo Bank, National Association 0.305000% 1
410906449 Xxxxx Fargo Bank, National Association 0.305000% 1
410906896 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
620907118 Xxxxx Fargo Bank, National Association 0.805000% 1
410906950 Xxxxx Fargo Bank, National Association 0.305000% 1
410906687 Xxxxx Fargo Bank, National Association 0.305000% 2
410906707 Xxxxx Fargo Bank, National Association 0.305000% 1
410907004 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
410906991 Xxxxx Fargo Bank, National Association 0.305000% 2
410907292 Xxxxx Fargo Bank, National Association 0.305000% 1
410907329 Xxxxx Fargo Bank, National Association 0.305000% 2
410906884 Xxxxx Fargo Bank, National Association 0.305000% 2
410907099 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
410906420 Xxxxx Fargo Bank, National Association 0.305000% 1
410906268 Xxxxx Fargo Bank, National Association 0.305000% 1
410906624 Xxxxx Fargo Bank, National Association 0.505000% 1
410906704 Xxxxx Fargo Bank, National Association 0.305000% 1
410907327 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
620907117 Xxxxx Fargo Bank, National Association 0.805000% 1
310905141 Xxxxx Fargo Bank, National Association 0.305000% 2
410906992 Xxxxx Fargo Bank, National Association 0.305000% 2
310905068 Xxxxx Fargo Bank, National Association 0.305000% 2
620906150 Xxxxx Fargo Bank, National Association 1.205000% 1
------------------------------------------------------------------------------------------------------------------------------------
410906794 Xxxxx Fargo Bank, National Association 0.305000% 2
410906990 Xxxxx Fargo Bank, National Association 0.305000% 2
410906987 Xxxxx Fargo Bank, National Association 0.305000% 2
410907123 Xxxxx Fargo Bank, National Association 0.305000% 2
410907244 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
620907102 Xxxxx Fargo Bank, National Association 0.305000% 1
410907452 Xxxxx Fargo Bank, National Association 1.005000% 1
620906242 Xxxxx Fargo Bank, National Association 0.805000% 1
410907520 Xxxxx Fargo Bank, National Association 0.305000% 2
410907173 Xxxxx Fargo Bank, National Association 1.005000% 1
------------------------------------------------------------------------------------------------------------------------------------
410906989 Xxxxx Fargo Bank, National Association 0.305000% 2
410906988 Xxxxx Fargo Bank, National Association 0.305000% 2
930907291 Xxxxx Fargo Bank, National Association 1.005000% 1
410907238 Xxxxx Fargo Bank, National Association 0.305000% 2
930906085 Xxxxx Fargo Bank, National Association 1.505000% 1
------------------------------------------------------------------------------------------------------------------------------------
930906085A
930906085B
SCHEDULE I-D
[Reserved]
S-I-D-1
SCHEDULE I-E
SCHEDULE OF PCFII POOLED MORTGAGE LOANS
S-I-E-1
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., SERIES 2007-PWR18
MORTGAGE LOAN SCHEDULE
CMSA
SELLER CMSA PROPERTY
LOAN ID ID LOAN NO. NO. PROPERTY NAME (1) ADDRESS CITY
---------------------------------------------------------------------------------------------------------------------------------
756347 2 2 GGP Portfolio Various Various
756347 2-a 2-001 GGP Portfolio - Marketplace Shopping Center 0000 Xxxxx Xxxx Xxxxxx Champaign
756349 0-x 0-000 XXX Xxxxxxxxx - Xxxxxxxx Xxxx 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx
000000 4 4 4-001 Hunters Branch I & II 9300 - 0000 Xxx Xxxxxxx Xxxxxxx
000000 6 6 0-000 Xxxxxxxx Xxxxxxx Westchase 0000 Xxxxxxxxx Xxxxx Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
756254 00 00 00-000 Marketplace at Four Corners 0000 Xxxxxx Xxxxx Xxxxx Xxxxxxxxxx
756198 15 15 00-000 Xxxxxxxxx Apartments 000 Xxxxxxx Xxxxxxxxx Xxxxx
000000 00 00 00-000 Aviata Apartments 0000 Xxxx Xxxx Xxxxxxx Xxxx Xxx Xxxxx
000000 35 35 35-001 1601 Las Xxxxxx Xxxxxx 0000 Xxx Xxxxxx Xxxxxx Xxx Xxxx
000000 37 37 00-000 Xxxxxxxx Xxxxx Xxxxx 0000 Xxxxxx Xxxx Xxx Xxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
755616 41 41 41-001 5555 Xxxx Xxxxxxx Xxxxxxxxx 0000 Xxxx Xxxxxxx Xxxxxxxxx Commerce
756149 63 63 00-000 Xxx Xxxxx Xxxx 00 Xxxxx 00 Xxxxxxxx
000000 00 00 00-000 Heathrow International Office 250 International Parkway Heathrow
756187 00 00 00-000 0000-0000 Xxxxxx Xxxxxx Xxxxx 0000-0000 Xxxxxx Xxxxxx Xxxxx Irvine
756218 00 00 00-000 Hampton Inn - Indianapolis 0000 Xxxxxxxx Xxxxx Xxxxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
756275 135 135 135-001 0000 Xxxxx 00xx Xxxxx 0000 Xxxxx 00xx Xxxxx Xxxxxxx
756271 144 144 144-001 Kroger Village 000-000 Xxxxxxxx Xxxxx Danville
756111 147 147 147-001 00000-00000 Xxxx Xxxxxxxxx Xxxxxx 00000-00000 Xxxx Xxxxxxxxx Xxxxxx Los Angeles
756246 151 151 000-000 Xxx-Xxxxxx Xxxxxxxxx 11322-11338 Princeton Pike Cincinnati
756018 162 162 163-001 000 Xxxxxxxxx Xxxx 000 Xxxxxxxxx Xxxx Xxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
756243 177 177 178-001 Golden Corral-Heritage 000 Xxx Xxxxxxx Dirt Road Hermitage
756260 182 182 183-001 Advance Auto 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx
CUT-OFF MONTHLY MONTHLY FIRST
SELLER ORIGINAL DATE DEBT DEBT SERVICE PAYMENT INTEREST
LOAN ID STATE ZIP CODE BALANCE ($) BALANCE ($) (3) SERVICE ($) (4) (5) AFTER IO ($) (4) (5) DATE RATE (4)
-------------------------------------------------------------------------------------------------------------------------
756347 Various Various 156,000,000 156,000,000 812,133.11 NAP 1/1/2008 6.1616%
756347 IL 61820 84,400,000 84,400,000
000000 XX 00000 71,600,000 71,600,000
756201 VA 22031 88,000,000 88,000,000 452,802.78 NAP 11/1/2007 6.0900%
756269 TX 77042 76,818,000 76,818,000 422,525.67 486,047.32 12/1/2007 6.5100%
-------------------------------------------------------------------------------------------------------------------------
000000 XX 00000 46,600,000 46,557,379 292,707.32 NAP 12/1/2007 6.4400%
756198 PA 19341 32,000,000 32,000,000 200,161.89 NAP 1/1/2008 6.4000%
755374 XX 00000 27,500,000 27,500,000 133,717.16 NAP 12/1/2007 5.7550%
000000 XX 00000 21,000,000 20,980,644 131,356.24 NAP 12/1/2007 6.4000%
000000 XX 00000 20,060,000 20,060,000 99,297.00 NAP 12/1/2007 5.9400%
-------------------------------------------------------------------------------------------------------------------------
000000 XX 00000 17,000,000 16,954,530 95,991.47 NAP 2/1/2007 5.9400%
756149 NJ 07827 9,500,000 9,500,000 52,092.77 59,984.00 12/1/2007 6.4900%
000000 XX 00000 9,300,000 9,300,000 52,881.91 60,196.04 1/1/2008 6.7300%
000000 XX 00000 7,000,000 6,993,345 43,054.69 NAP 12/1/2007 6.2400%
756218 IN 46278 6,500,000 6,494,147 41,169.95 NAP 12/1/2007 6.5200%
-------------------------------------------------------------------------------------------------------------------------
000000 XX 00000 3,500,000 3,495,333 23,654.13 NAP 12/1/2007 6.5100%
756271 XX 00000 3,150,000 3,147,091 19,682.82 NAP 12/1/2007 6.3900%
000000 XX 00000 2,900,000 2,897,317 18,101.71 NAP 12/1/2007 6.3800%
756246 OH 45246 2,500,000 2,495,912 15,785.26 NAP 11/1/2007 6.4900%
756018 PA 18936 2,000,000 1,992,417 11,811.59 NAP 9/1/2007 5.8600%
-------------------------------------------------------------------------------------------------------------------------
000000 XX 00000 1,295,000 1,293,909 8,494.25 NAP 12/1/2007 6.8600%
756260 IL 62650 975,000 973,738 6,705.64 NAP 12/1/2007 6.7000%
CROSSED
INTEREST MATURITY ARD ORIGINAL STATED REMAINING ORIGINAL REMAINING REMAINING WITH
SELLER ACCRUAL DATE LOAN TERM TO MATURITY TERM TO MATURITY AMORTIZATION AMORTIZATION INTEREST ONLY OTHER
LOAN ID BASIS OR ARD (Y/N) OR ARD (MOS.) OR ARD (MOS.) TERM (MOS.) (4) TERM (MOS.) (4) PERIOD (MOS.) LOANS
------------------------------------------------------------------------------------------------------------------------------------
756347 Actual/360 2/1/2013 No 62 62 0 0 0 0
756347
756349
756201 Actual/360 10/1/2017 No 120 118 0 0 0 0
756269 Actual/360 11/1/2017 No 120 119 360 360 360 360
------------------------------------------------------------------------------------------------------------------------------------
756254 Actual/360 11/1/2017 No 120 119 360 359 360 359
756198 Actual/360 12/1/2017 No 120 120 360 360 360 360
755374 Actual/360 11/1/2017 No 120 119 0 0 0 0
756248 Actual/360 11/1/2017 Yes 120 119 360 359 360 359
756255 30/360 11/1/2012 Xx 00 00 0 0 0 0
------------------------------------------------------------------------------------------------------------------------------------
000000 Actual/360 9/1/2017 Yes 128 117 420 417 420 417
756149 Actual/360 11/1/2017 No 120 119 360 360 360 360
756277 Actual/360 12/1/2017 No 120 120 360 360 360 360
756187 Actual/360 11/1/2017 No 120 119 360 359 360 359
756218 Actual/360 11/1/2017 No 120 119 360 359 360 359
------------------------------------------------------------------------------------------------------------------------------------
756275 Actual/360 11/1/2017 No 120 119 300 299 300 299
756271 Actual/360 11/1/2017 No 120 119 360 359 360 359
756111 Actual/360 11/1/2014 Yes 84 83 360 359 360 359
756246 Actual/360 10/1/2017 No 120 118 360 358 360 358
756018 Actual/360 8/1/2017 No 120 116 360 356 360 356
------------------------------------------------------------------------------------------------------------------------------------
756243 Actual/360 11/1/2017 Yes 120 119 360 359 360 359
756260 Actual/360 11/1/2017 Yes 120 119 300 299 300 299
PREPAYMENT MORTGAGE
SELLER PROVISIONS OWNERSHIP LOAN ADMINISTRATIVE PAYMENT PAYMENT GRACE PERIOD
LOAN ID (# OF PAYMENTS) (8) INTEREST SELLER (2) FEE RATE DATE EVENT OF LATE FEE (DAYS)
----------------------------------------------------------------------------------------------------------------------------------
756347 LO(24)/Defeasance(34)/Open(4) Fee PCFII 0.03148% 1st 2 days once every 12 months
756347 Fee PCFII
756349 Fee PCFII
756201 LO(26)/Defeasance(90)/Open(4) Fee PCFII 0.03148% 1st 0
756269 LO(25)/Defeasance(93)/Open(2) Fee PCFII 0.03148% 1st 5 days once per calendar year or five
times during loan term; none thereafter
----------------------------------------------------------------------------------------------------------------------------------
756254 LO(25)/Defeasance(93)/Open(2) Fee PCFII 0.03148% 1st 2
756198 LO(24)/Defeasance(94)/Open(2) Fee PCFII 0.03148% 1st 0
755374 LO(25)/Defeasance(92)/Open(3) Fee PCFII 0.03148% 1st 0
756248 LO(25)/GRTR1% or YM(93)/Open(2) Fee PCFII 0.03148% 1st 0
756255 LO(13)/GRTR1% or YM(45)/Open(2) Fee PCFII 0.03148% 1st 0
----------------------------------------------------------------------------------------------------------------------------------
755616 LO(35)/Flex(91)/Open(2) Fee PCFII 0.03148% 1st 0
756149 GRTR1% or YM(118)/Open(2) Fee PCFII 0.03148% 1st 0
756277 LO(24)/Defeasance(94)/Open(2) Fee PCFII 0.03148% 1st 0
756187 GRTR1% or YM(118)/Open(2) Fee PCFII 0.03148% 1st 0
756218 LO(25)/Defeasance(91)/Open(4) Fee PCFII 0.03148% 1st 5
----------------------------------------------------------------------------------------------------------------------------------
756275 LO(25)/GRTR1% or YM(93)/Open(2) Fee PCFII 0.03148% 1st 0
756271 LO(25)/GRTR1% or YM(93)/Open(2) Fee PCFII 0.03148% 1st 0
756111 LO(25)/GRTR1% or YM(57)/Open(2) Fee PCFII 0.03148% 1st 0
756246 LO(26)/GRTR1% or YM(92)/Open(2) Fee PCFII 0.03148% 1st 0
756018 LO(28)/GRTR1% or YM(88)/Open(4) Fee PCFII 0.03148% 1st 0
----------------------------------------------------------------------------------------------------------------------------------
756243 LO(25)/GRTR1% or YM(93)/Open(2) Fee PCFII 0.03148% 1st 0
756260 LO(25)/GRTR1% or YM(93)/Open(2) Fee PCFII 0.03148% 1st 0
SELLER LETTER OF
LOAN ID CREDIT BORROWER
---------------------------------------------------------- ----------------------------------------------------------
756347 Columbia Mall L.L.C. and Champaign Market Place L.L.C.
756347
756349
756201 Hunters Branch Partners, L.L.C.
756269 Additional Security/Debt Service LOC ($7,195,703) GEPA Hotel Owner Houston LLC
---------------------------------------------------------- ----------------------------------------------------------
756254 Michaels Holdback LOC ($466,000) Bainbridge Shopping Center II, LLC
756198 Debt Service LOC ($4,750,000) Claremont Apartments, L.P.
755374 Aviata Limited Partnership
756248 Inland American/Xxxxxxxx (Las Plumas) Ventures, LLC
756255 Inland Western New Port Xxxxxx Xxxxxxxx, L.L.C.
---------------------------------------------------------- ----------------------------------------------------------
755616 0000 Xxxxxxx Xxxxxxxxx, LLC
756149 Tri-State Mall Associates Limited Partnership
756277 Heathrow Equity I, LLC
756187 Irvine Auto Care, LLC
756218 Indy Northwest Hotel Limited Partnership
---------------------------------------------------------- ----------------------------------------------------------
756275 Xxxxx Triumph LLC
756271 Danwill, LLC and Xxxxxxxx, LLC
756111 BMBG Investments, LLC
756246 Tri-County Promenade, LLC
756018 309 Realty Partners, LLC
---------------------------------------------------------- ----------------------------------------------------------
756243 GC Hermitage Investments LLC
756260 Xxxxxxx Gas Service, Inc.
NON-TRUST-SERVICED NON-TRUST-SERVICED
SELLER MASTER MASTER SERVICER LOAN GROUP POOLED MORTGAGE LOAN POOLED MORTGAGE
LOAN ID SERVICER FEE RATE (ONE OR TWO) APPLICABLE RATE LOAN ACCRUAL
--------------------------------------------------------------------------------------------------------------------------
756347 Xxxxx Fargo Bank, National Association 0.305000% 1
756347
756349
756201 Xxxxx Fargo Bank, National Association 0.305000% 1
756269 Xxxxx Fargo Bank, National Association 0.305000% 1
--------------------------------------------------------------------------------------------------------------------------
756254 Xxxxx Fargo Bank, National Association 0.305000% 1
756198 Xxxxx Fargo Bank, National Association 0.305000% 2
755374 Xxxxx Fargo Bank, National Association 0.305000% 2
756248 Xxxxx Fargo Bank, National Association 0.305000% 1
756255 Xxxxx Fargo Bank, National Association 0.305000% 1
--------------------------------------------------------------------------------------------------------------------------
755616 Xxxxx Fargo Bank, National Association 0.305000% 1
756149 Xxxxx Fargo Bank, National Association 0.305000% 1
756277 Xxxxx Fargo Bank, National Association 0.305000% 1
756187 Xxxxx Fargo Bank, National Association 0.305000% 1
756218 Xxxxx Fargo Bank, National Association 0.305000% 1
--------------------------------------------------------------------------------------------------------------------------
756275 Xxxxx Fargo Bank, National Association 0.305000% 1
756271 Xxxxx Fargo Bank, National Association 0.305000% 1
756111 Xxxxx Fargo Bank, National Association 0.305000% 1
756246 Xxxxx Fargo Bank, National Association 0.305000% 1
756018 Xxxxx Fargo Bank, National Association 0.305000% 1
--------------------------------------------------------------------------------------------------------------------------
756243 Xxxxx Fargo Bank, National Association 0.305000% 1
756260 Xxxxx Fargo Bank, National Association 0.305000% 1
SCHEDULE I-F
SCHEDULE OF NATIONWIDE POOLED MORTGAGE LOANS
S-I-F-1
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., SERIES 2007-PWR18
MORTGAGE LOAN SCHEDULE
CMSA
SELLER CMSA PROPERTY
LOAN ID ID LOAN NO. NO. PROPERTY NAME (1) ADDRESS
---------------------------------------------------------------------------------------------------------------------------------
00-1101608 12 12 12-001 Xxxxxxx Center I & II 000 Xxxxxxxx Xxxxxx & 000 Xxxxxxx Xxxxxx Xxxx
00-1100953 13 13 13-001 Battlefield Shopping Center 0000 Xxxxxxx Xxxxx Xxxx XX
00-1101114 23 23 23-001 Kroger Marketplace Centre 7493-7625 Sawmill Road & 0000-0000 Xxxx Xxxx
00-1101443 33 33 00-000 Xxxxxxxxx Xxxxxx Shopping Center 0000-0000 Xxxx Xxxxxxx Xxxxxx
00-1101584 53 53 00-000 Xxxx Xxxxxx Shopping Center 0000 Xxxxxx Xxxx
---------------------------------------------------------------------------------------------------------------------------------
00-1101565 76 76 76-001 788 Building 788 North Jefferson
00-1101490 81 81 81-001 0000-0000 Xxxxxx Xxxxxx 0000-0000 Xxxxxx Xxxxxx
00-1101598 86 86 00-000 Xxxxxx Xxxxxx Shopping Center 13816 & 00000 Xxx Xxxxxxxx Xxxx
00-1101397 90 90 00-000 Xxxxxxxxx Xxxxxx 0000 Xxxx Xxxx
00-1101298 101 101 101-001 SunWest Crossing 00000-00000 Xxxxx Xxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
00-1101339 102 102 102-001 Lincoln Center 12620 and 00000 Xxxxxxxxxx Xxxx
00-1101587 103 103 103-001 Lincoln Retail Center 00000 Xxxxxxx Xxx
00-1101486 105 105 000-000 Xxxxxx Xxxx Xxxxxxxxxx, Xxxxx XXX 0000 X. Xxxxxxxxx Xxxxxx
00-1101529 106 106 106-001 BayCare Health Systems 0000 Xxxxx Xxxx
00-1101559 109 109 000-000 Xxxxxxx 000 Xxxxxxxx Xxxx 0000-0000 & 0000-0000 X. Xx Xxxxxxx and 12700-12712 Yukon
---------------------------------------------------------------------------------------------------------------------------------
00-1101585 113 113 113-001 Shoppes at Xxx Xxxx 0000 Xxx Xxxx
00-1101530 114 114 114-001 0000 X. Xxxxxxxxx Xxxx 0000 X. Xxxxxxxxx Xxxx
00-1101588 118 118 000-000 Xxxxxxxxx Xxxxxxx 0000-0000 Xxxx XX Xxxxxxx 36
00-1101603 121 121 121-001 Crescent Corners 17-33 and 45-69 East 00000 Xxxxx Xxxxxx
00-1101609 139 139 139-001 Pick 'n' Save 000 X. Xxxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
00-1101523 143 143 143-001 Shoppes at the Exchange 9500 and 0000-0000 Xxxxxxxxxx Xxxx
CUT-OFF MONTHLY MONTHLY FIRST
SELLER ORIGINAL DATE DEBT DEBT SERVICE PAYMENT
LOAN ID CITY STATE ZIP CODE BALANCE ($) BALANCE ($) (3) SERVICE ($) (4) (5) AFTER IO ($) (4) (5) DATE
--------------------------------------------------------------------------------------------------------------------------------
00-1101608 Xxxxxx XX 00000 40,000,000 40,000,000 210,212.96 245,506.95 1/1/2008
00-1100953 Xxxxxxxx XX 00000 39,600,000 39,600,000 177,870.00 222,119.07 10/5/2005
00-1101114 Xxxxxx XX 00000 26,410,000 25,916,649 152,281.06 NAP 7/1/2006
00-1101443 Xxxxxxxxx XX 00000 22,000,000 22,000,000 103,163.19 NAP 6/1/2007
00-1101584 Xxxxxx XX 00000 12,000,000 12,000,000 67,119.44 76,797.65 12/1/2007
--------------------------------------------------------------------------------------------------------------------------------
00-1101565 Xxxxxxxxx XX 00000 7,650,000 7,650,000 40,849.58 47,451.20 12/1/2007
00-1101490 XxXxxx XX 00000 7,400,000 7,400,000 40,667.06 46,794.06 12/1/2007
00-1101598 Xxxxxx Xxxxxx XX 00000 7,000,000 7,000,000 38,916.44 44,613.69 12/1/2007
00-1101397 Xxxxx Xxxxxxxxx XX 00000 6,900,000 6,900,000 35,212.36 41,546.60 12/1/2007
00-1101298 Xxxxxxxxx XX 00000 5,900,000 5,900,000 31,804.00 36,827.62 12/1/2006
--------------------------------------------------------------------------------------------------------------------------------
00-1101339 Xxxxxxxxx XX 00000 4,100,000 4,100,000 24,476.23 NAP 1/1/2007
00-1101587 Xxxx Xxxx XX 00000 1,650,000 1,650,000 9,117.40 10,472.57 12/1/2007
00-1101486 Xxxxxxxxxxx XX 00000 5,600,000 5,600,000 27,537.22 32,929.53 12/1/2007
00-1101529 Xxxxxxx XX 00000 5,500,000 5,500,000 29,601.33 34,294.86 10/5/2007
00-1101559 Xxxxxxxxx XX 00000 5,100,000 5,100,000 27,189.97 31,600.86 12/1/2007
--------------------------------------------------------------------------------------------------------------------------------
00-1101585 Xxxxxxx XX 00000 5,000,000 5,000,000 27,501.74 31,636.29 12/1/2007
00-1101530 Xxxxxxxxx Xxxxx XX 00000 5,000,000 5,000,000 27,881.94 31,932.94 12/1/2007
00-1101588 Xxxx XX 00000 4,800,000 4,800,000 26,442.22 30,402.43 1/1/2008
00-1101603 Xxxxx XX 00000 4,500,000 4,500,000 24,751.56 28,472.66 1/1/2008
00-1101609 Xxxxxxxxx XX 00000 3,250,000 3,247,096 20,670.62 NAP 12/1/2007
--------------------------------------------------------------------------------------------------------------------------------
00-1101523 Xxxxxxxxxx XX 00000 3,175,000 3,175,000 16,980.74 19,714.52 12/1/2007
INTEREST MATURITY ARD ORIGINAL STATED REMAINING ORIGINAL REMAINING
SELLER INTEREST ACCRUAL DATE LOAN TERM TO MATURITY TERM TO MATURITY AMORTIZATION AMORTIZATION
LOAN ID RATE (4) BASIS OR ARD (Y/N) OR ARD (MOS.) OR ARD (MOS.) TERM (MOS.) (4) TERM (MOS.) (4)
------------------------------------------------------------------------------------------------------------------------
00-1101608 6.2200% Actual/360 12/1/2017 No 120 120 360 360
00-1100953 5.3900% 30/360 9/5/2015 No 120 93 360 360
00-1101114 5.6400% Actual/360 6/1/2016 No 120 102 360 342
00-1101443 5.5500% Actual/360 5/1/2017 No 120 113 0 0
00-1101584 6.6200% Actual/360 11/1/2017 No 120 119 360 360
------------------------------------------------------------------------------------------------------------------------
00-1101565 6.3200% Actual/360 11/1/2017 Yes 120 119 360 360
00-1101490 6.5043% Actual/360 11/1/2017 No 120 119 360 360
00-1101598 6.5800% Actual/360 11/1/2017 No 120 119 360 360
00-1101397 6.0400% Actual/360 11/1/2017 No 120 119 360 360
00-1101298 6.3800% Actual/360 11/1/2016 No 120 107 360 360
------------------------------------------------------------------------------------------------------------------------
00-1101339 5.9600% Actual/360 12/1/2016 No 120 108 360 360
00-1101587 6.5400% Actual/360 12/1/2016 No 109 108 360 360
00-1101486 5.8200% Actual/360 11/1/2017 No 120 119 360 360
00-1101529 6.3700% Actual/360 9/5/2017 No 120 117 360 360
00-1101559 6.3100% Actual/360 11/1/2017 No 120 119 360 360
------------------------------------------------------------------------------------------------------------------------
00-1101585 6.5100% Actual/360 11/1/2017 No 120 119 360 360
00-1101530 6.6000% Actual/360 11/1/2017 No 120 119 360 360
00-1101588 6.5200% Actual/360 12/1/2017 No 120 120 360 360
00-1101603 6.5100% Actual/360 12/1/2017 No 120 120 360 360
00-1101609 6.5600% Actual/360 11/1/2017 No 120 119 360 359
------------------------------------------------------------------------------------------------------------------------
00-1101523 6.3300% Actual/360 11/1/2017 No 120 119 360 360
REMAINING CROSSED PREPAYMENT MORTGAGE
SELLER INTEREST ONLY WITH PROVISIONS OWNERSHIP LOAN ADMINISTRATIVE PAYMENT
LOAN ID PERIOD (MOS.) OTHER LOANS (# OF PAYMENTS) (8) INTEREST SELLER (2) FEE RATE DATE
---------------------------------------------------------------------------------------------------------------------------
00-1101608 360 360 LO(24)/Defeasance(91)/Open(5) Fee NLIC 0.07148% 1st
00-1100953 360 360 GRTR1% or YM(115)/Open(5) Fee NLIC 0.06298% 5th
00-1101114 360 342 LO(47)/GRTR1% or YM(69)/Open(4) Fee NLIC 0.09148% 1st
00-1101443 0 0 LO(31)/Defeasance(85)/Open(4) Fee NLIC 0.06148% 1st
00-1101584 360 360 LO(49)/GRTR1% or YM(66)/Open(5) Fee/Leasehold NLIC 0.08148% 1st
---------------------------------------------------------------------------------------------------------------------------
00-1101565 000 000 XX(00)/Xxxxxxxxxx(00)/Xxxx(0) Xxx XXXX 0.10148% 1st
00-1101490 360 360 LO(48)/GRTR1% or YM(68)/Open(4) Fee NLIC 0.09148% 1st
00-1101598 360 360 LO(25)/Defeasance(91)/Open(4) Fee NLIC 0.10148% 1st
00-1101397 360 360 LO(47)/GRTR1% or YM(68)/Open(5) Fee NLIC 0.09148% 1st
00-1101298 360 360 LO(36)/GRTR1% or YM(80)/Open(4) Fee NLIC 0.09148% 1st
---------------------------------------------------------------------------------------------------------------------------
00-1101339 000 000 XX(00)/Xxxxxxxxxx(00)/Xxxx(0) Xxx XXXX 0.10148% 1st
00-1101587 360 360 LO(25)/Defeasance(80)/Open(4) Fee NLIC 0.10148% 1st
00-1101486 360 360 LO(25)/Defeasance(91)/Open(4) Fee NLIC 0.06148% 1st
00-1101529 360 360 LO(48)/GRTR1% or YM(65)/Open(7) Fee NLIC 0.10148% 5th
00-1101559 360 360 LO(48)/GRTR1% or YM(67)/Open(5) Fee NLIC 0.08148% 1st
---------------------------------------------------------------------------------------------------------------------------
00-1101585 360 360 LO(25)/GRTR1% or YM(91)/Open(4) Fee NLIC 0.10148% 1st
00-1101530 360 360 LO(25)/Defeasance(90)/Open(5) Fee NLIC 0.09148% 1st
00-1101588 360 360 LO(24)/Defeasance(92)/Open(4) Fee NLIC 0.10148% 1st
00-1101603 360 360 LO(24)/Defeasance(92)/Open(4) Fee NLIC 0.10148% 1st
00-1101609 360 359 LO(25)/Defeasance(91)/Open(4) Fee NLIC 0.10148% 1st
---------------------------------------------------------------------------------------------------------------------------
00-1101523 360 360 LO(47)/GRTR1% or YM(69)/Open(4) Fee NLIC 0.10148% 1st
PAYMENT
GRACE PERIOD
SELLER EVENT OF LETTER OF
LOAN ID LATE FEE (DAYS) CREDIT BORROWER
---------------------------------------------------------------------------------------------------------------------------------
00-1101608 0 Guardian Fund II - Xxxxxxx LLC
00-1100953 0 CH Realty III/Battlefield, L.L.C.
00-1101114 0 Sawmill Hard Center LLC
00-1101443 0 Westfredic, L.L.C.
00-1101584 0 Cleanup Work Escrow; Xxxxxxxxx XXX ($265,150) Park Forest SWC, Ltd.
---------------------------------------------------------------------------------------------------------------------------------
00-1101565 0 788 Building Limited Partnership
00-1101490 0 Xxxxxx Xxxxxx Group, LLC
00-1101598 0 Xxxxxx Xxxxxx Borrower LLC
00-1101397 0 DO-AN Investments, Ltd.
00-1101298 0 Eastern Properties & Investments LLC
---------------------------------------------------------------------------------------------------------------------------------
00-1101339 0 NOI LOC ($1,100,000) L&P Investments, LLC
00-1101587 0 L & L One, LLC
00-1101486 0 LOC ($175,413) Autumn Leaf Properties LLC
00-1101529 0 Springing BayCare LOC YMC Oldsmar Investments, LLC
00-1101559 0 El Segundo/Yukon Partners, LLC
---------------------------------------------------------------------------------------------------------------------------------
00-1101585 0 Xxxxxx Xxxxxx Investments, LLC
00-1101530 0 Springing Rental Achievement XXX Xxxxxxx Development 1700, LLC
00-1101588 0 Rockville Station, LLC; Valley View Rockville, LLC
00-1101603 0 SandyWest, LLC
00-1101609 0 Springing Debt Service (LOC) Waterford Investors I LLC; Waterford Investors II LLC
---------------------------------------------------------------------------------------------------------------------------------
00-1101523 0 LOC ($800,000) Shoppes at Exchange, Ltd.
NON-TRUST-SERVICED NON-TRUST-SERVICED
SELLER MASTER MASTER SERVICER LOAN GROUP POOLED MORTGAGE POOLED MORTGAGE
LOAN ID SERVICER FEE RATE (ONE OR TWO) APPLICABLE RATE LOAN ACCRUAL
-----------------------------------------------------------------------------------------------------------------------------
00-1101608 Xxxxx Fargo Bank, National Association 0.705000% 1
00-1100953 Xxxxx Fargo Bank, National Association 0.620000% 1
00-1101114 Xxxxx Fargo Bank, National Association 0.905000% 1
00-1101443 Xxxxx Fargo Bank, National Association 0.605000% 1
00-1101584 Xxxxx Fargo Bank, National Association 0.805000% 1
-----------------------------------------------------------------------------------------------------------------------------
00-1101565 Xxxxx Fargo Bank, National Association 1.005000% 1
00-1101490 Xxxxx Fargo Bank, National Association 0.905000% 1
00-1101598 Xxxxx Fargo Bank, National Association 1.005000% 1
00-1101397 Xxxxx Fargo Bank, National Association 0.905000% 1
00-1101298 Xxxxx Fargo Bank, National Association 0.905000% 1
-----------------------------------------------------------------------------------------------------------------------------
00-1101339 Xxxxx Fargo Bank, National Association 1.005000% 1
00-1101587 Xxxxx Fargo Bank, National Association 1.005000% 1
00-1101486 Xxxxx Fargo Bank, National Association 0.605000% 2
00-1101529 Xxxxx Fargo Bank, National Association 1.005000% 1
00-1101559 Xxxxx Fargo Bank, National Association 0.805000% 1
-----------------------------------------------------------------------------------------------------------------------------
00-1101585 Xxxxx Fargo Bank, National Association 1.005000% 1
00-1101530 Xxxxx Fargo Bank, National Association 0.905000% 1
00-1101588 Xxxxx Fargo Bank, National Association 1.005000% 1
00-1101603 Xxxxx Fargo Bank, National Association 1.005000% 1
00-1101609 Xxxxx Fargo Bank, National Association 1.005000% 1
-----------------------------------------------------------------------------------------------------------------------------
00-1101523 Xxxxx Fargo Bank, National Association 1.005000% 1
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
(UNDER SECTION 2.02(A) OF THIS AGREEMENT)
There are no exceptions.
S-II-1
SCHEDULE III
SCHEDULE OF DESIGNATED SUB-SERVICERS
Control
Number Pooled Pooled
(Pros- Mortgage Loan Mortgage Loan
pectus ID) Seller Seller Number Loan/Property Name
--------- ------------- ------------- ---------------------------------
12 NLIC 00-1101608 Xxxxxxx Center I & II
13 NLIC 00-1100953 Battlefield Shopping Center
18 PMCF 6107601 HRC Portfolio 3
19 PMCF 6107597 HRC Portfolio 1
21 PMCF 6107599 HRC Portfolio 2
23 NLIC 00-1001114 Kroger Marketplace Centre
30 PMCF 6107431 Temple City Marketplace
33 NLIC 00-1101443 Westridge Square Shopping Center
53 NLIC 00-1101584 Park Forest Shopping Center
67 PMCF 6107245 The Mix at Southbridge
76 NLIC 00-1101565 788 Building
81 NLIC 00-1101490 0000-0000 Xxxxxx Xxxxxx
86 NLIC 00-1101598 Xxxxxx Xxxxxx Shopping Center
90 NLIC 00-1101397 Arlington Pointe
101 NLIC 00-1101298 XxxXxxx Xxxxxxxx
000 XXXX 00-1101339 Lincoln Center
103 NLIC 00-1101587 Lincoln Retail Center
105 NLIC 00-1101486 Xxxxxx Xxxx Xxxxxxxxxx, Xxxxx XXX
000 XXXX 00-1101529 BayCare Health Systems
109 NLIC 00-1101559 Century 000 Xxxxxxxx Xxxx
000 XXXX 00-1101585 Shoppes at Xxx Xxxx
000 XXXX 00-1101530 0000 X. Xxxxxxxxx Xxxx
118 NLIC 00-1101588 Rockville Station
121 NLIC 00-1101603 Crescent Corners
139 NLIC 00-1101609 Pick `n' Save
143 NLIC 00-1101523 Shoppes at the Exchange
Sub-
Servicing
Control Fee Term.
Number Cut-off Date Rate With-out
(Pros- Principal (per Cause
pectus ID) Balance annum) Fee Sub-Servicer
--------- ------------ --------- -------- ------------------------------------------------
12 $40,000,000 0.030% None Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
13 $39,600,000 0.0215% None Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
18 $26,941,047 0.050% None Prudential Mortgage Capital Company LLC ("PMCC")
(or a Person designated by PMCC)
19 $26,876,104 0.050% None PMCC (or a Person designated by PMCC)
21 $26,201,704 0.050% None PMCC (or a Person designated by PMCC)
23 $25,916,649 0.050% None Capstone Realty Advisors
30 $22,500,000 0.050% None PMCC (or a Person designated by PMCC)
33 $22,000,000 0.020% None Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
53 $12,000,000 0.040% None GMAC Commercial Mortgage Corp.
67 $9,000,000 0.050% None PMCC (or a Person designated by PMCC)
76 $7,650,000 0.060% None Collateral Mortgage Capital
81 $7,400,000 0.050% None NorthMarq Capital, Inc.
86 $7,000,000 0.060% None Xxxxxx & Dunlop, Inc.
90 $6,900,000 0.050% None Capstone Realty Advisors
101 $5,900,000 0.050% None Q10 Capital Xxxxx-Xxxxxxx Inc
102 $4,100,000 0.060% None NorthMarq Capital, Inc.
103 $1,650,000 0.060% None NorthMarq Capital, Inc.
105 $5,600,000 0.020% None Collateral Mortgage Capital
106 $5,500,000 0.060% None GMAC Commercial Mortgage Corp.
109 $5,100,000 0.040% None Q10 Capital Xxxxx-Xxxxxxx Inc
113 $5,000,000 0.060% None Tavernier Capital Partners
114 $5,000,000 0.050% None GMAC Commercial Mortgage Corp
118 $4,800,000 0.060% None Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
121 $4,500,000 0.060% None Q10 Capital Xxxxx-Xxxxxxx Inc
139 $3,247,096 0.060% None Collateral Mortgage Capital
143 $3,175,000 0.060% None Blue Sky Financial LLC
S-III-1
SCHEDULE IV
REFERENCE RATES
DISTRIBUTION DATE(1) REFERENCE RATE (%) DISTRIBUTION DATE(1) REFERENCE RATE (%)
--------------------- ----------------- ------------------- -----------------
January 2008 6.38330 July 2011 6.17826
February 2008 6.18063 August 2011 6.38070
March 2008 6.18063 September 2011 6.38065
April 2008 6.38315 October 2011 6.17807
May 2008 6.18049 November 2011 6.38051
June 2008 6.38306 December 2011 6.17794
July 2008 6.18040 January 2012 6.38037
August 2008 6.38296 February 2012 6.17780
September 2008 6.38292 March 2012 6.17786
October 2008 6.18026 April 2012 6.38016
November 2008 6.38282 May 2012 6.17759
December 2008 6.18017 June 2012 6.38113
January 2009 6.18011 July 2012 6.17801
February 2009 6.18007 August 2012 6.37623
March 2009 6.18017 September 2012 6.37303
April 2009 6.38254 October 2012 6.16222
May 2009 6.17990 November 2012 6.36430
June 2009 6.38243 December 2012 6.16189
July 2009 6.17979 January 2013 6.16201
August 2009 6.38231 February 2013 6.16194
September 2009 6.38226 March 2013 6.16671
October 2009 6.17963 April 2013 6.36695
November 2009 6.38214 May 2013 6.16368
December 2009 6.17951 June 2013 6.36678
January 2010 6.17944 July 2013 6.16351
February 2010 6.17938 August 2013 6.36661
March 2010 6.17954 September 2013 6.36654
April 2010 6.38177 October 2013 6.16327
May 2010 6.17915 November 2013 6.36637
June 2010 6.38162 December 2013 6.16310
July 2010 6.17901 January 2014 6.16301
August 2010 6.38148 February 2014 6.16292
September 2010 6.38142 March 2014 6.16335
October 2010 6.17883 April 2014 6.36587
November 2010 6.38130 May 2014 6.16261
December 2010 6.17873 June 2014 6.36568
January 2011 6.17866 July 2014 6.16241
February 2011 6.17860 August 2014 6.45211
March 2011 6.17886 September 2014 6.45430
April 2011 6.38097 October 2014 6.25183
May 2011 6.17839 November 2014 6.45726
June 2011 6.38084 December 2014 6.25168
(1) The reference rate set forth opposite each distribution date applies for
the preceding interest accrual period. For example, the rate set forth
opposite the January 2008 distribution date applies for the December 2007
interest accrual period.
S-IV-1
DISTRIBUTION DATE(1) REFERENCE RATE (%)
--------------------- -----------------
January 2015 6.25165
February 2015 6.25163
March 2015 6.25225
April 2015 6.45712
May 2015 6.25154
June 2015 6.45707
July 2015 6.25149
August 2015 6.45702
September 2015 6.45700
October 2015 6.27236
November 2015 6.48240
December 2015 6.27229
(1) The reference rate set forth opposite each distribution date applies for
the preceding interest accrual period. For example, the rate set forth
opposite the January 2008 distribution date applies for the December 2007
interest accrual period.
S-IV-2
SCHEDULE V
BORROWER THIRD-PARTY BENEFICIARIES
(UNDER SECTION 2.03)
1. The Borrowers under the Group of Cross-Collateralized Mortgage Loans
secured by the Mortgaged Properties identified on the Pooled Mortgage Loan
Schedule as Camelot Acres, Pheasant Ridge and Independence Hill.
2. The Borrowers under the Group of Cross-Collateralized Mortgage Loans
secured by the Mortgaged Properties identified on the Pooled Mortgage Loan
Schedule as Rite Aid - Salem, Rite Aid - New Philadelphia, Rite Aid Portfolio -
Flatwoods and Rite Aid Portfolio - New Salisbury.
3. The Borrowers under the Group of Cross-Collateralized Mortgage Loans
secured by the Mortgaged Properties identified on the Pooled Mortgage Loan
Schedule as North 92nd Street Portfolio A1 - Building A and North 92nd Street
Portfolio A2 - Building B.
4. The Borrowers under the Group of Cross-Collateralized Mortgage Loans
secured by the Mortgaged Properties identified on the Pooled Mortgage Loan
Schedule as Lincoln Center and Lincoln Retail Center.
S-V-1
SCHEDULE VI
CLASS A-AB PLANNED PRINCIPAL BALANCES
CLASS A-AB CLASS A-AB CLASS A-AB
PLANNED PLANNED PLANNED
PRINCIPAL PRINCIPAL PRINCIPAL
DISTRIBUTION DATE BALANCE ($) DISTRIBUTION DATE BALANCE ($) DISTRIBUTION DATE BALANCE ($)
----------------- -------------- ----------------- -------------- ----------------- --------------
January 2008 131,900,000.00 March 2011 131,900,000.00 May 2014 105,858,000.00
February 2008 131,900,000.00 April 2011 131,900,000.00 June 2014 104,340,000.00
March 2008 131,900,000.00 May 2011 131,900,000.00 July 2014 102,600,000.00
April 2008 131,900,000.00 June 2011 131,900,000.00 August 2014 101,064,000.00
May 2008 131,900,000.00 July 2011 131,900,000.00 September 2014 99,600,000.00
June 2008 131,900,000.00 August 2011 131,900,000.00 October 2014 97,846,000.00
July 2008 131,900,000.00 September 2011 131,900,000.00 November 2014 96,396,000.00
August 2008 131,900,000.00 October 2011 131,900,000.00 December 2014 94,628,000.00
September 2008 131,900,000.00 November 2011 131,900,000.00 January 2015 93,074,000.00
October 2008 131,900,000.00 December 2011 131,900,000.00 February 2015 91,512,000.00
November 2008 131,900,000.00 January 2012 131,900,000.00 March 2015 89,277,000.00
December 2008 131,900,000.00 February 2012 131,900,000.00 April 2015 87,694,000.00
January 2009 131,900,000.00 March 2012 131,900,000.00 May 2015 85,881,000.00
February 2009 131,900,000.00 April 2012 131,900,000.00 June 2015 84,280,000.00
March 2009 131,900,000.00 May 2012 131,900,000.00 July 2015 82,449,000.00
April 2009 131,900,000.00 June 2012 131,900,000.00 August 2015 80,829,000.00
May 2009 131,900,000.00 July 2012 131,900,000.00 September 2015 42,639,000.00
June 2009 131,900,000.00 August 2012 131,900,000.00 October 2015 40,839,000.00
July 2009 131,900,000.00 September 2012 131,900,000.00 November 2015 39,249,000.00
August 2009 131,900,000.00 October 2012 131,900,000.00 December 2015 37,432,000.00
September 2009 131,900,000.00 November 2012 131,900,000.00 January 2016 35,823,000.00
October 2009 131,900,000.00 December 2012 131,900,000.00 February 2016 34,205,000.00
November 2009 131,900,000.00 January 2013 131,900,000.00 March 2016 32,143,000.00
December 2009 131,900,000.00 February 2013 129,504,379.80 April 2016 30,505,000.00
January 2010 131,900,000.00 March 2013 127,510,000.00 May 2016 28,642,000.00
February 2010 131,900,000.00 April 2013 126,161,000.00 June 2016 4,824,000.00
March 2010 131,900,000.00 May 2013 124,587,000.00 July 2016 2,990,000.00
April 2010 131,900,000.00 June 2013 123,223,000.00 August 2016 1,358,000.00
May 2010 131,900,000.00 July 2013 121,633,000.00 September 2016 0.00
June 2010 131,900,000.00 August 2013 120,253,000.00
July 2010 131,900,000.00 September 2013 118,865,000.00
August 2010 131,900,000.00 October 2013 117,253,000.00
September 2010 131,900,000.00 November 2013 115,848,000.00
October 2010 131,900,000.00 December 2013 114,220,000.00
November 2010 131,900,000.00 January 2014 112,748,000.00
December 2010 131,900,000.00 February 2014 111,268,000.00
January 2011 131,900,000.00 March 2014 109,094,000.00
February 2011 131,900,000.00 April 2014 107,594,000.00
S-VI-1
SCHEDULE VII
CLOSING DATE DEPOSIT MORTGAGE LOANS
AND RELATED CLOSING DATE DEPOSIT AMOUNTS
None.
S-VII-1
SCHEDULE VIII
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria", provided that,
for the avoidance of doubt this Schedule VIII shall not require any assessment
of any criterion to the extent that the assessment of such criterion is not
required under the terms of Regulation AB. In addition, this Schedule VIII shall
not be construed to impose on any Person any servicing duty that is not
otherwise imposed on such Person under the main body of the Pooling and
Servicing Agreement of which this Schedule VIII forms a part or to require an
assessment of a criterion that is not encompassed by the servicing duties of the
applicable party that are set forth in the main body of such Pooling and
Servicing Agreement.
------------------------------------------------------------------------------------------------------------------------------
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
------------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Certificate Administrator
triggers and events of default in accordance with the transaction agreements. Master Servicer
Special Servicer
Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, Certificate Administrator
policies and procedures are instituted to monitor the third party's Master Servicer
performance and compliance with such servicing activities. Special Servicer
Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer N/A
for the mortgage loans are maintained.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Certificate Administrator
participating in the servicing function throughout the reporting period in Trustee
the amount of coverage required by and otherwise in accordance with the terms Master Servicer
of the transaction agreements. Special Servicer
Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank Certificate Administrator
accounts and related bank clearing accounts no more than two business days Master Servicer
following receipt, or such other number of days specified in the transaction Special Servicer
agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an Certificate Administrator
investor are made only by authorized personnel.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are Special Servicer
made, reviewed and approved as specified in the transaction agreements. Trustee
------------------------------------------------------------------------------------------------------------------------------
S-VIII-1
------------------------------------------------------------------------------------------------------------------------------
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
------------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Certificate Administrator
accounts established as a form of overcollateralization, are separately Master Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Certificate Administrator
institution as set forth in the transaction agreements. For purposes of this Master Servicer
criterion, "federally insured depository institution" with respect to a Special Servicer
foreign financial institution means a foreign financial institution that Primary Servicer
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer
Special Servicer
Certificate Administrator
Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed
securities related bank accounts, including custodial accounts and related Certificate Administrator
bank clearing accounts. These reconciliations (A) are mathematically Master Servicer
accurate; (B) are prepared within 30 calendar days after the bank statement Special Servicer
cutoff date, or such other number of days specified in the transaction Primary Servicer
agreements; (C) are reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of days specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are Certificate Administrator
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Certificate Administrator
timeframes, distribution priority and other terms set forth in the
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Certificate Administrator
Servicer's investor records, or such other number of days specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Certificate Administrator
checks, or other form of payment, or custodial bank statements.
------------------------------------------------------------------------------------------------------------------------------
S-VIII-2
------------------------------------------------------------------------------------------------------------------------------
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
------------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Trustee
transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Trustee
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed Trustee
and approved in accordance with any conditions or requirements in the Master Servicer
transaction agreements. Special Servicer
Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with Master Servicer
the related mortgage loan documents are posted to the Servicer's obligor Special Servicer
records maintained no more than two business days after receipt, or such Primary Servicer
other number of days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in accordance with the
related mortgage loan documents.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's Master Servicer
records with respect to an obligor's unpaid principal balance. Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans Master Servicer
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicer
authorized personnel in accordance with the transaction agreements and Primary Servicer
related pool asset documents.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications Master Servicer
and deeds in lieu of foreclosure, foreclosures and repossessions, as Special Servicer
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. Special Servicer
Such records are maintained on at least a monthly basis, or such other period Primary Servicer
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
variable rates are computed based on the related mortgage loan documents. Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
S-VIII-3
------------------------------------------------------------------------------------------------------------------------------
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
------------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): Master Servicer
(A) such funds are analyzed, in accordance with the obligor's mortgage loan Primary Servicer
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans, or such other number of days
specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on Primary Servicer
the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the transaction
agreements.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on Master Servicer
behalf of an obligor are paid from the servicer's funds and not charged to Primary Servicer
the obligor, unless the late payment was due to the obligor's error or
omission.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business Master Servicer
days to the obligor's records maintained by the servicer, or such other Primary Servicer
number of days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
recorded in accordance with the transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) N/A
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------
S-VIII-4
SCHEDULE IX
ADDITIONAL FORM 10-D DISCLOSURE
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.06 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Certificate Administrator any information described in the
corresponding Form 10-D Item described in the "Item on Form 10-D" column to the
extent such party has knowledge (and in the case of net operating income
information, financial statements, annual operating statements, budgets and/or
rent rolls required to be provided in connection with Item 6 below, possession)
of such information (other than information as to itself). Each of the
Certificate Administrator, the Trustee, each Master Servicer, each Primary
Servicer and each Special Servicer (in its capacity as such) shall be entitled
to rely on the accuracy of the Prospectus Supplement (other than information
with respect to itself that is set forth in or omitted from the Prospectus
Supplement), in the absence of specific notice to the contrary from the
Depositor or a Pooled Mortgage Loan Seller. Each of the Certificate
Administrator, the Trustee, each Master Servicer, each Primary Servicer and each
Special Servicer (in its capacity as such) shall be entitled to assume that
there is no "significant obligor" other than a party or property identified as
such in the Prospectus Supplement and to assume that no other party or property
will constitute a "significant obligor" after the Cut-off Date. In no event
shall a Master Servicer, Primary Servicer or Special Servicer be required to
provide any information for inclusion in a Form 10-D that relates to any
Mortgage Loan for which such Master Servicer, Primary Servicer or Special
Servicer is not the applicable Master Servicer, Primary Servicer or Special
Servicer, as the case may be. For this Series 2007-PWR18 Pooling and Servicing
Agreement, each of the Certificate Administrator, the Trustee, each Master
Servicer, each Primary Servicer and each Special Servicer (in its capacity as
such) shall be entitled to assume that there is no provider of credit
enhancement, liquidity or derivative instruments within the meaning of Items
1114 or 1115 of Regulation AB.
-----------------------------------------------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
-----------------------------------------------------------------------------------------------------------------------
Item 1A: Distribution and Pool Performance Information: o Certificate Administrator/Trustee
o Item 1121(a)(13) of Regulation AB
-----------------------------------------------------------------------------------------------------------------------
Item 1B: Distribution and Pool Performance Information: o Certificate Administrator/Trustee
o Item 1121(a)(14) of Regulation AB o Depositor
-----------------------------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings: o Each Master Servicer (as to itself)
o Item 1117 of Regulation AB (it being o Each Special Servicer (as to itself)
acknowledged that such Item 1117 requires
disclosure only of proceedings described o Certificate Administrator (as to itself)
therein that are material to security
holders) o Trustee (as to itself)
-----------------------------------------------------------------------------------------------------------------------
S-IX-1
-----------------------------------------------------------------------------------------------------------------------
o Depositor (as to itself)
o Each Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Certificate Administrator/Master
Servicer/Depositor/Special Servicer as to the Trust
(whichever of them is in principal control of the
proceedings)
o Each Pooled Mortgage Loan Seller as sponsor (as
defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
-----------------------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds o Depositor
-----------------------------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities o Certificate Administrator
o Trustee
-----------------------------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security o Certificate Administrator
Holders o Trustee
-----------------------------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets: o Each Master Servicer (as to Mortgage Loans for
which it is the applicable Master Servicer and
o Item 1112(b) of Regulation AB provided, excluding information for which the applicable
however, that all of the following conditions Primary Servicer or the applicable Special Servicer
shall apply: is the "Party Responsible")
(a) information shall be required to be o Each Primary Servicer (as to Mortgage Loans for
reported only with respect to a party or which it is the applicable Primary Servicer)
property (if any) identified as a
"significant obligor" in the Prospectus
Supplement;
-----------------------------------------------------------------------------------------------------------------------
S-IX-2
-----------------------------------------------------------------------------------------------------------------------
(b) the information to be reported shall o Each Special Servicer (as to REO Properties for
consist of such quarterly and annual which it is the applicable Special Servicer)
operating statements, budgets and rent rolls
of the related Mortgaged Property or REO
Property (as applicable), and quarterly and
annual financial statements of the related
Borrower (except in the case of an REO
Property), received or prepared by the "Party
Responsible" pursuant to its obligations
under Section 3.12(b) of this Pooling and
Servicing Agreement (or, if the "Party
Responsible" is a Primary Servicer, pursuant
to the similar obligations of such Primary
Servicer under the related Primary Servicing
Agreement) ; provided, however, that for a
significant obligor under item 1101(k)(2) of
Regulation AB, only net operating income for
the most recent fiscal year and interim
period is required and, if such information
for a prior period was required but not
previously reported, such information for
such prior period; and
(c) the information shall be reportable in
the Form 10-D that relates to the
Distribution Date that immediately follows
the Collection Period in which the
information was received or prepared by the
"Party Responsible" as described in clause
(b) above.
-----------------------------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Information: o Depositor
o Item 1114(b)(2) and Item 1115(b) of
Regulation AB
-----------------------------------------------------------------------------------------------------------------------
Item 8: Other Information, but only to the extent of o Certificate Administrator, Trustee, each Master
any information that meets all the following conditions: Servicer, each Primary Servicer and/or each
(a) such information constitutes "Additional Form 8-K Special Servicer, in each case to the extent that
Disclosure" pursuant to Schedule XI, (b) such such party is the "Party Responsible" with respect
information is required to be reported as "Additional to such information pursuant to Schedule XI.
Form 8-K Disclosure" during the period to which the Form
10-D relates, and (c) such information was not
previously reported as "Additional Form 8-K Disclosure".
-----------------------------------------------------------------------------------------------------------------------
S-IX-3
-----------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits (no. 3): o Depositor
Articles of incorporation and by-laws (Exhibit No. 3(i)
and 3(ii) of Item 601 of Regulation S-K)
-----------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits (no. 4): o Trustee
o Certificate Administrator
With respect to instruments defining the rights of
security holders (Exhibit No. 4 of Item 601 of provided, in each case, that this shall in no event be
Regulation S-K) construed to make such party responsible for the
initial filing of this Pooling and Servicing Agreement
-----------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits (no. 10): o Certificate Administrator, Trustee, each Master
Servicer, each Primary Servicer and/or each
Material contracts (Exhibit No. 10 of Item 601 of Special Servicer, in each case to the extent of
Regulation S-K) any contract that satisfies all the following
conditions: (a) such contract relates to the Trust
or one or more Mortgage Loans or REO Mortgage
Loans, and (b) such contract is a contract to
which such party (or a subcontractor or vendor
engaged by such party) is a party or that such
party (or a subcontractor or vendor engaged by
such party) has caused to have been executed on
behalf of the Trust.
-----------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits (no. 22): o The applicable party that is the "Party
Responsible" with respect to Item 5 as set forth
Published Report Regarding Matters Submitted to a Vote above.
of Security Holders (Exhibit No. 22 of Item 601 of
Regulation S-K), but only if the party that is the
"Party Responsible" with respect to Item 5 above elects
to publish a report containing the information required
by such Item 5 above and also elects to report the
information on Form 10-D by means of filing the
published report and answering Item 5 by referencing the
published report.
-----------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits (no. 23): o Depositor
Consents of Experts and Counsel (Exhibit No. 23(ii) of
Item 601 of Regulation S-K), where the filing of a
written consent is required with respect to material (in
the Form 10-D) that is incorporated by reference in the
Depositor's registration statement.
-----------------------------------------------------------------------------------------------------------------------
S-IX-4
-----------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits (no. 24) o Trustee
Power of Attorney (Exhibit No. 24 of Item 601 of
Regulation S-K), but only if the name of any party
signing the Form 10-D, or the name of any officer
signing the Form 10-D on behalf of a party, is signed
pursuant to a power of attorney.
-----------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits (no. 99) o Not Applicable.
Additional exhibits (Exhibit Xx. 00 xx Xxxx 000 xx
Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits (no. 100) o Not Applicable.
XBRL-Related Documents (Exhibit Xx. 000 xx Xxxx 000 xx
Xxxxxxxxxx X-X).
-----------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits (By Operation of Item 8 Above), but o Certificate Administrator, Depositor and Trustee,
only to the extent of any document that meets all the in each case only to the extent that such party is
following conditions: (a) such document constitutes the "Party Responsible" for the exhibit pursuant
"Additional Form 8-K Disclosure" pursuant to Item to Item 9(d) of Schedule X (it being acknowledged
9.01(d) of Schedule XI, (b) such document is required to that none of the Master Servicers, the Primary
be reported as "Additional Form 8-K Disclosure" during Servicers or the Special Servicers constitutes a
the period to which the Form 10-D relates, and (c) such "Party Responsible" under Schedule XI with respect
document was not previously reported as "Additional Form to any exhibits to a Form 10-K)I.
8-K Disclosure".
-----------------------------------------------------------------------------------------------------------------------
S-IX-5
SCHEDULE X
ADDITIONAL FORM 10-K DISCLOSURE
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.07 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Certificate Administrator any information described in the
corresponding Form 10-K Item described in the "Item on Form 10-K" column to the
extent such party has knowledge (and in the case of net operating income
information, financial statements, annual operating statements, budgets and/or
rent rolls required to be provided in connection with 1112(b) below, possession)
of such information (other than information as to itself). Each of the
Certificate Administrator, the Trustee, each Master Servicer, each Primary
Servicer and each Special Servicer (in its capacity as such) shall be entitled
to rely on the accuracy of the Prospectus Supplement (other than information
with respect to itself that is set forth in or omitted from the Prospectus
Supplement), in the absence of specific notice to the contrary from the
Depositor or a Pooled Mortgage Loan Seller. Each of the Certificate
Administrator, the Trustee, each Master Servicer, each Primary Servicer and each
Special Servicer (in its capacity as such) shall be entitled to assume that
there is no "significant obligor" other than a party or property identified as
such in the Prospectus Supplement and to assume that no other party or property
will constitute a "significant obligor" after the Cut-off Date. In no event
shall a Master Servicer, Primary Servicer or Special Servicer be required to
provide any information for inclusion in a Form 10-K that relates to any
Mortgage Loan for which such Master Servicer, Primary Servicer or Special
Servicer is not the applicable Master Servicer, Primary Servicer or Special
Servicer, as the case may be. For this Series 2007-PWR18 Pooling and Servicing
Agreement, each of the Certificate Administrator, the Trustee, each Master
Servicer, each Primary Servicer and each Special Servicer (in its capacity as
such) shall be entitled to assume that there is no provider of credit
enhancement, liquidity or derivative instruments within the meaning of Items
1114 or 1115 of Regulation AB.
-----------------------------------------------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
-----------------------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
-----------------------------------------------------------------------------------------------------------------------
Item 9B: Other Information, but only to the extent of o Certificate Administrator, Trustee, each Master
any information that meets all the following conditions: Servicer, each Primary Servicer and/or each Special
Servicer, in each case to the extent that such party
(a) such information constitutes "Additional is the "Party Responsible" with respect to such
Form 8-K Disclosure" pursuant to Schedule XI, information pursuant to Schedule XI.
(b) such information is required to be reported
as "Additional Form 8-K Disclosure" during the
period to which the Form 10-K relates, and
(c) such information was not previously
reported as "Additional Form 8-K Disclosure" or
as "Additional Form 10-D Disclosure"
-----------------------------------------------------------------------------------------------------------------------
S-X-1
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules (SEE SEE BELOW
BELOW)
-----------------------------------------------------------------------------------------------------------------------
Instruction J(2)(b) (Significant Obligors of Pool o The applicable Pooled Mortgage Loan Seller.
Assets) - Part 1 of 3 Parts:
o Item 1112(b) of Regulation AB, but only to
the extent that (i) such information was
required to have been set forth in the
Prospectus Supplement, (ii) such information
was not so set forth and (iii) the applicable
Master Servicer or applicable Primary
Servicer has not previously reported such
information as "Additional Form 10-D
Information".
-----------------------------------------------------------------------------------------------------------------------
Instruction J(2)(b) (Significant Obligors of Pool o The Depositor
Assets) - Part 2 of 3 Parts:
o Item 1112(b) of Regulation AB, but only to
the extent that (i) such information was set
forth in the Prospectus Supplement and (ii)
the applicable Master Servicer or applicable
Primary Servicer has not previously reported
such information or updated versions thereof
as "Additional Form 10-D Information".
-----------------------------------------------------------------------------------------------------------------------
Instruction J(2)(b) (Significant Obligors of Pool o Each Master Servicer (as to Mortgage Loans for which
Assets) - Part 3 of 3 Parts: it is the applicable Master Servicer and excluding
information for which the applicable Primary
o Item 1112(b) of Regulation AB; provided, Servicer or the applicable Special Servicer is the
however, that all of the following conditions "Party Responsible")
shall apply:
o Each Primary Servicer (as to Mortgage Loans for
(a) information shall be required to be which it is the applicable Primary Servicer)
reported only with respect to a party or
property (if any) identified as a o Each Special Servicer (as to REO Properties for
"significant obligor" in the Prospectus which it is the applicable Special Servicer)
Supplement;
-----------------------------------------------------------------------------------------------------------------------
S-X-2
-----------------------------------------------------------------------------------------------------------------------
(b) the information to be reported shall
consist of such quarterly and annual
operating statements, budgets and rent rolls
of the related Mortgaged Property or REO
Property (as applicable), and quarterly and
annual financial statements of the related
Borrower (except in the case of an REO
Property), received or prepared by the "Party
Responsible" pursuant to its obligations
under Section 3.12(b) of this Pooling and
Servicing Agreement (or, if the "Party
Responsible" is a Primary Servicer, pursuant
to the similar obligations of such Primary
Servicer under the related Primary Servicing
Agreement); provided, however, that for a
significant obligor described under item
1101(k)(2) of Regulation AB, only net
operating income for the most recent fiscal
year and interim period is required and, if
such information for a prior period was
required but not previously reported, such
information for such prior period; and
(c) the information shall be reportable only
to the extent that is has not previously been
reported as "Additional Form 10-D
Information".
-----------------------------------------------------------------------------------------------------------------------
Instruction J(2)(c) (Significant Enhancement Provider
Information):
o Depositor
o Items 1114(b)(2) and 1115(b) of Regulation AB o Trustee
-----------------------------------------------------------------------------------------------------------------------
Instruction J(2)(d) (Legal Proceedings): o Each Master Servicer (as to itself)
o Item 1117 of Regulation AB (it being o Each Special Servicer (as to itself)
acknowledged that such Item 1117 requires
disclosure only of proceedings described o Certificate Administrator (as to itself)
therein that are material to security
holders) o Trustee (as to itself)
-----------------------------------------------------------------------------------------------------------------------
S-X-3
-----------------------------------------------------------------------------------------------------------------------
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Certificate Administrator/Master
Servicer/Depositor/Special Servicer as to the Trust
(whichever of them is in principal control of the
proceedings)
o Each Pooled Mortgage Loan Seller as sponsor (as
defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
-----------------------------------------------------------------------------------------------------------------------
Instruction J(2)(e) (Affiliations and Certain o Each Master Servicer
Relationships and Related Transactions) - Part 1 of 2 o Each Special Servicer
Parts: o Certificate Administrator
o Trustee
1119(a) of Regulation AB, o Each Primary Servicer
o Each party (other than a Pooled Mortgage Loan
but only the existence and (if existent) how there Seller), if any, that is identified in the
is (that is, the nature of) any affiliation between Prospectus Supplement as an "originator" of one or
itself (that is, the particular "Party more Pooled Mortgage Loans, if the Prospectus
Responsible"), on the one hand, and any one or more Supplement specifically states that the applicable
of the following, on the other: (1) the Depositor, Pooled Mortgage Loans were 10% or more of the assets
(2) any Pooled Mortgage Loan Seller, (3) the Trust of the Trust at the date of the Prospectus
and (4) any other party listed under this item as a Supplement (provided that such a party shall no
"Party Responsible"; provided, however, that an longer constitute a "Party Responsible" under this
affiliation need not be disclosed for purposes of item from and after the date (if any) when the
the applicable Form 10-K if it was disclosed in the Depositor notifies the parties to this Agreement and
Prospectus Supplement or if it was previously the Primary Servicers to the effect that such party
reported as "Additional Form 10-K Disclosure". no longer constitutes an originator of 10% or more
of the assets of the Trust).
-----------------------------------------------------------------------------------------------------------------------
S-X-4
-----------------------------------------------------------------------------------------------------------------------
and o Each party (other than a Pooled Mortgage Loan
Seller), if any, that is specifically identified as
o 1119(b) of Regulation AB, an "originator of 10% or more of the assets of the
Trust for purposes of Regulation AB and the upcoming
but only the existence and (if existent) the Form 10-K" in a written notice delivered to the
general character of any business relationship, parties to this Pooling and Servicing Agreement and
agreement, arrangement, transaction or to the Primary Servicers, which notice is delivered
understanding that is entered into outside the not later than February 15 of the year in which the
ordinary course of business or is on terms other Form 10-K is due.
than would be obtained in an arm's length o Each party (if any) that is identified in the
transaction with an unrelated third party (apart Prospectus Supplement as an "other material party to
from the Series 2007-PWR18 transaction) between the securities or transaction" (or substantially
itself (that is, the particular "Party similar phrasing); provided, however, that such a
Responsible") or any of its affiliates, on the one party shall no longer constitute a "Party
hand, and any one or more of the following, on the Responsible" under this item from and after the date
other: (1) the Depositor, (2) any Pooled Mortgage (if any) when the Depositor notifies the parties to
Loan Seller, and (3) the Trust; provided, however, this Agreement and the Primary Servicers to the
that a relationship, agreement, arrangement, effect that such party no longer constitutes a
transaction or understanding (A) must be reported material party for purposes of Regulation AB.
only if it then exists or existed within the two o Each party (if any) that that is specifically
prior years, (B) need not be reported if it is not identified as an "other material party to the
material to an investor's understanding of the securities or transaction for purposes of Regulation
Certificates and (C) need not be disclosed for AB and the upcoming Form 10-K" (or substantially
purposes of the applicable Form 10-K if it was similar phrasing) in a written notice delivered by
disclosed in the Prospectus Supplement or if it was the Depositor to the parties to this Pooling and
previously reported as "Additional Form 10-K Servicing Agreement and to the Primary Servicers,
Disclosure". which notice is delivered not later than February 15
of the year in which the Form 10-K is due.
and
o 1119(c) of Regulation AB,
but only the existence and (if existent) a
description (including the terms and approximate
dollar amount) of any specific relationship
involving or related to the Series 2007-PWR18
transaction or the Pooled Mortgage Loans between
itself (that is, the particular "Party
Responsible") or any of its affiliates, on the one
hand, and any one or more of the following, on the
other: (1) the Depositor, (2) any Pooled Mortgage
Loan Seller, and (3) the Trust; provided, however,
that a relationship (A) must be reported only if it
then exists or existed within the two prior years,
(B) need not be reported if it is not material to
an investor's understanding of the Certificates and
(C) need not be disclosed for purposes of the
applicable Form 10-K if it was disclosed in the
Prospectus Supplement or if it was previously
reported as "Additional Form 10-K Disclosure".
-----------------------------------------------------------------------------------------------------------------------
S-X-5
-----------------------------------------------------------------------------------------------------------------------
Instruction J(2)(e) (Affiliations and Certain o The Depositor
Relationships and Related Transactions) - Part 2 of 2 o Each Pooled Mortgage Loan Seller
Parts:
1119(a) of Regulation AB,
But only the existence and (if existent) how there
is any affiliation between itself (that is, the
particular "Party Responsible"), on the one hand,
and any one or more of the parties listed under the
preceding item as a "Party Responsible", on the
other; provided, however, that an affiliation need
not be disclosed for purposes of the applicable
Form 10-K if it was disclosed in the Prospectus
Supplement or if it was previously reported as
"Additional Form 10-K Disclosure".
and
o 1119(b) of Regulation AB,
but only the existence and (if existent) the
general character of any business relationship,
agreement, arrangement, transaction or
understanding that is entered into outside the
ordinary course of business or is on terms other
than would be obtained in an arm's length
transaction with an unrelated third party (apart
from the Series 2007-PWR18 transaction) between
itself (that is, the particular "Party
Responsible"), on the one hand, and any one or more
of the parties listed under the preceding item as a
"Party Responsible", on the other; provided,
however, that a relationship, agreement,
arrangement, transaction or understanding (A) must
be reported only if it then exists or existed
within the two prior years, (B) need not be
reported if it is not material to an investor's
understanding of the Certificates and (C) need not
be disclosed for purposes of the applicable Form
10-K if it was disclosed in the Prospectus
Supplement or if it was previously reported as
"Additional Form 10-K Disclosure".
-----------------------------------------------------------------------------------------------------------------------
S-X-6
-----------------------------------------------------------------------------------------------------------------------
and
o 1119(c) of Regulation AB,
but only the existence and (if existent) a
description (including the terms and approximate
dollar amount) of any specific relationship
involving or related to the Series 2007-PWR18
transaction or the Pooled Mortgage Loans between
itself (that is, the particular "Party
Responsible") or any of its affiliates, on the one
hand, and any one or more of the parties listed
under the preceding item as a "Party Responsible",
on the other; provided, however, that a
relationship (A) must be reported only if it then
exists or existed within the two prior years, (B)
need not be reported if it is not material to an
investor's understanding of the Certificates and
(C) need not be disclosed for purposes of the
applicable Form 10-K if it was disclosed in the
Prospectus Supplement or if it was previously
reported as "Additional Form 10-K Disclosure".
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 2): o Depositor
Plan of acquisition, reorganization, arrangement,
liquidation or succession (Exhibit Xx. 0 xx Xxxx 000 xx
Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
S-X-7
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 3): o Depositor
Articles of incorporation and by-laws (Exhibit No. 3(i)
and 3(ii) of Item 601 of Regulation S-K)
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 4): o Trustee
o Certificate Administrator
With respect to instruments defining the rights of
security holders (Exhibit No. 4 of Item 601 of provided, in each case, that this shall in no event be
Regulation S-K) construed to make such party responsible for the initial
filing of this Pooling and Servicing Agreement
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 10): o Certificate Administrator, Trustee, each Master
Servicer, each Primary Servicer and/or each Special
Material contracts (Exhibit No. 10 of Item 601 of Servicer, in each case to the extent of any contract
Regulation S-K) that satisfies all the following conditions: (a)
such contract relates to the Trust or one or more
Mortgage Loans or REO Mortgage Loans, and (b) such
contract is a contract to which such party (or a
subcontractor or vendor engaged by such party) is a
party or that such party (or a subcontractor or
vendor engaged by such party) has caused to have
been executed on behalf of the Trust.
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 11): o Not Applicable
Statement regarding computation of per share earnings
(Exhibit Xx. 00 xx Xxxx 000 xx Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 12): o Not Applicable.
Statement regarding computation of ratios (Exhibit Xx.
00 xx Xxxx 000 xx Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 13): o Not Applicable
Annual report to security holders, Form 10-Q and Form
10-QSB, or quarterly report to security holders (Exhibit
No. 13 of Item 601 of Regulation S-K)
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 14): o Not Applicable.
Code of Ethics (Exhibit Xx. 00 xx Xxxx 000 xx Xxxxxxxxxx
X-X)
-----------------------------------------------------------------------------------------------------------------------
S-X-8
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 16): o Not Applicable
Letter re change in certifying accountant (Exhibit Xx.
00 xx Xxxx 000 xx Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 18): o Not Applicable.
Letter re change in accounting principles (Exhibit Xx.
00 xx Xxxx 000 xx Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 21): o Depositor.
Subsidiaries of registrant (Exhibit Xx. 00 xx Xxxx 000
xx Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 22): o Not applicable.
Published Report Regarding Matters Submitted to a Vote
of Security Holders (Exhibit Xx. 00 xx Xxxx 000 xx
Xxxxxxxxxx X-X).
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 23) - Part 1 of 2 Parts: o Depositor
Consents of Experts and Counsel (Exhibit No. 23(ii) of
Item 601 of Regulation S-K), where (a) the filing of a
written consent is required with respect to material (in
the Form 10-D) that is incorporated by reference in the
Depositor's registration statement and (b) the consent
is not the consent of a registered public accounting
firm in connection with an attestation delivered
pursuant to Section 11.13 of this Pooling and Servicing
Agreement.
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 23) - Part 2 of 2 Parts: o Each Master Servicer
o Each Special Servicer
Consents of Experts and Counsel (Exhibit No. 23(ii) of o Certificate Administrator
Item 601 of Regulation S-K), but the required shall o Trustee
consist of a consent of the registered public accounting o Depositor
firm for purposes of any attestation report rendered o Each Primary Servicer
with respect to the particular "Party Responsible" o Any other Servicing Function Participant
pursuant to Section 11.13 of this Pooling and Servicing
Agreement. provided, however, in each case, that such party shall
have the duty to report or deliver, or cause the
reporting or delivery, of such consent only to the
extent that such party is required to deliver or cause
the delivery of the related attestation report.
-----------------------------------------------------------------------------------------------------------------------
S-X-9
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 24) o Trustee
Power of Attorney (Exhibit No. 24 of Item 601 of
Regulation S-K), but only if the name of any party
signing the Form 10-D, or the name of any officer
signing the Form 10-D on behalf of a party, is signed
pursuant to a power of attorney.
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 31(i)) o Not Applicable
Rule 13a-14(a)/15d-14(a) Certifications (Exhibit No.
31(i) of Item 601 of Regulation S-K).
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 31(ii)) o Delivery of this exhibit (Xxxxxxxx-Xxxxx
certification and backup certifications) is governed
Rule 13a-14(d)/15d-14(d) Certifications (Exhibit No. by Section 11.08 (and Section 11.07) of this Pooling
31(ii) of Item 601 of Regulation S-K). and Servicing Agreement.
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 32) o Not Applicable.
Section 1350 Certifications (Exhibit Xx. 00 xx Xxxx 000
xx Xxxxxxxxxx X-X).
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 33) o Delivery of this exhibit (annual compliance
assessment) is governed by Section 11.12 (and
Report on assessment of compliance with servicing Section 11.07) of this Pooling and Servicing
criteria for asset-backed securities (Exhibit No. 33 of Agreement.
Item 601 of Regulation S-K).
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 34) o Delivery of this exhibit (annual accountants'
attestation report) is governed by Section 11.13
Attestation report on assessment of compliance with (and Section 11.07) of this Pooling and Servicing
servicing criteria for asset-backed securities (Exhibit Agreement.
Xx. 00 xx Xxxx 000 xx Xxxxxxxxxx X-X).
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 35) o Delivery of this exhibit (annual servicer compliance
statements) is governed by Section 11.11 (and
Servicer compliance statement (Exhibit No. 35 of Item Section 11.07) of this Pooling and Servicing
601 of Regulation S-K). Agreement.
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 99) o Not Applicable.
Additional exhibits (Exhibit Xx. 00 xx Xxxx 000 xx
Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 100) o Not Applicable.
XBRL-Related Documents (Exhibit Xx. 000 xx Xxxx 000 xx
Xxxxxxxxxx X-X).
-----------------------------------------------------------------------------------------------------------------------
S-X-10
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (By Operation of Item 9B Above), but o Certificate Administrator, Depositor and Trustee, in
only to the extent of any document that meets all the each case only to the extent that such party is the
following conditions: (a) such document constitutes "Party Responsible" for the exhibit pursuant to Item
"Additional Form 8-K Disclosure" pursuant to Item 9(d) of Schedule XI (it being acknowledged that none
9.01(d) of Schedule XI, (b) such document is required to of the Master Servicers, the Primary Servicers or
be reported as "Additional Form 8-K Disclosure" during the Special Servicers constitutes a "Party
the period to which the Form 10-K relates, and (c) such Responsible" under Schedule XI with respect to any
document was not previously reported as "Additional Form exhibits to a Form 10-K).
8-K Disclosure".
-----------------------------------------------------------------------------------------------------------------------
S-X-11
SCHEDULE XI
FORM 8-K DISCLOSURE INFORMATION
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.09 of the Pooling and Servicing Agreement to report to the
Depositor and the Certificate Administrator the occurrence of any event
described in the corresponding Form 8-K Item described in the "Item on Form 8-K"
column to the extent such party has knowledge of such information (other than
information as to itself). Each of the Certificate Administrator, the Trustee,
each Master Servicer, each Primary Servicer and each Special Servicer (in its
capacity as such) shall be entitled to rely on the accuracy of the Prospectus
Supplement (other than information with respect to itself that is set forth in
or omitted from the Prospectus Supplement), in the absence of specific notice to
the contrary from the Depositor or a Pooled Mortgage Loan Seller. Each of the
Certificate Administrator, the Trustee, each Master Servicer, each Primary
Servicer and each Special Servicer (in its capacity as such) shall be entitled
to assume that there is no "significant obligor" other than a party or property
identified as such in the Prospectus Supplement and to assume that no other
party or property will constitute a "significant obligor" after the Cut-off
Date. In no event shall a Master Servicer, Primary Servicer or Special Servicer
be required to provide any information for inclusion in a Form 8-K that relates
to any Mortgage Loan for which such Master Servicer, Primary Servicer or Special
Servicer is not the applicable Master Servicer, Primary Servicer or Special
Servicer, as the case may be. For this Series 2007-PWR18 Pooling and Servicing
Agreement, each of the Certificate Administrator, the Trustee, each Master
Servicer, each Primary Servicer and each Special Servicer (in its capacity as
such) shall be entitled to assume that there is no provider of credit
enhancement, liquidity or derivative instruments within the meaning of Items
1114 or 1115 of Regulation AB.
-----------------------------------------------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
-----------------------------------------------------------------------------------------------------------------------
Item 1.01: Entry into a Material Definitive Agreement o Depositor, except as described in the next bullet
(it being acknowledged that Item 601 of Regulation
S-K requires filing of material contracts to which
the registrant or a subsidiary thereof is a party).
o Certificate Administrator, Trustee, each Master
Servicer, each Primary Servicer and/or each Special
Servicer (it being acknowledged that Instruction 3
to Item 1.01 of Form 8-K requires disclosure
regarding the entry into or an amendment of a
definitive agreement that is material to the
asset-backed securities transaction, even if the
registrant is not a party to such agreement), in
each case to the extent of any amendment or
definitive agreement that satisfies all the
following conditions: (a) such amendment or
definitive agreement relates to the Trust or one or
more Mortgage Loans or REO Mortgage Loans, and (b)
such amendment or definitive agreement is a
amendment or definitive agreement to which such
party (or a subcontractor or vendor engaged by such
party) is a party or that such party (or a
subcontractor or vendor engaged by such party) has
caused to have been executed on behalf of the Trust;
provided, however, that the Certificate
Administrator shall be the "Party Responsible" in
connection with any amendment to this Pooling and
Servicing Agreement.
-----------------------------------------------------------------------------------------------------------------------
S-XI-1
-----------------------------------------------------------------------------------------------------------------------
Item 1.02: Termination of a Material Definitive o Certificate Administrator, Trustee, each Master
Agreement- Part 1 of 2 Parts Servicer, each Primary Servicer and/or each Special
Servicer, in each case to the extent of any contract
that satisfies all the following conditions: (a)
such contract relates to the Trust or one or more
Mortgage Loans or REO Mortgage Loans, and (b) such
contract is a contract to which such party (or a
subcontractor or vendor engaged by such party) is a
party or that such party (or a subcontractor or
vendor engaged by such party) has caused to have
been executed on behalf of the Trust; provided,
however, that the Certificate Administrator shall be
the "Party Responsible" in connection with any
amendment to this Pooling and Servicing Agreement.
-----------------------------------------------------------------------------------------------------------------------
Item 1.02: Termination of a Material Definitive o Depositor, to the extent of any material agreement
Agreement- Part 2 of 2 Parts not covered in the prior item
-----------------------------------------------------------------------------------------------------------------------
Item 1.03: Bankruptcy or Receivership o Depositor
-----------------------------------------------------------------------------------------------------------------------
S-XI-2
-----------------------------------------------------------------------------------------------------------------------
Item 2.04: Triggering Events that Accelerate or o Trustee
Increase a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
-----------------------------------------------------------------------------------------------------------------------
Item 3.03: Material Modification to Rights of Security o Certificate Administrator
Holders o Trustee
-----------------------------------------------------------------------------------------------------------------------
Item 5.03: Amendments of Articles of Incorporation or o Depositor
Bylaws; Change of Fiscal Year
-----------------------------------------------------------------------------------------------------------------------
Item 6.01: ABS Informational and Computational Material o Depositor
-----------------------------------------------------------------------------------------------------------------------
Item 6.02 (Part 1 of 3 Parts): Change of Servicer or o Trustee
Trustee, but only to the extent related to a change in o Depositor
trustee
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Item 6.02 (Part 2 of 3 Parts): Change of Servicer or o Certificate Administrator
Trustee, but only to the extent related to a change in o The applicable Master Servicer, the applicable
Master Servicer, Special Servicer or Primary Servicer Special Servicer or the applicable Primary Servicer,
as the case may be (in each case, as to itself)
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Item 6.02 (Part 3 of 3 Parts): Change of Servicer or o Each Master Servicer
Trustee , but only to the extent related to a servicer o Each Special Servicer
(other than a party to the Pooling and Servicing o Each Primary Servicer
Agreement or to a Primary Servicing Agreement) appointed o Certificate Administrator
by the particular "Party Responsible". o Trustee
o Depositor
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Item 6.03: Change in Credit Enhancement or External o Depositor
Support o Certificate Administrator
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Item 6.04: Failure to Make a Required Distribution o Certificate Administrator
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Item 6.05: Securities Act Updating Disclosure o Depositor
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Item 7.01: Regulation FD Disclosure o Depositor
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Item 8.01: Other Events o Depositor
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Item 9.01(d): Exhibits (no. 1): o Not applicable
Underwriting agreement (Exhibit Xx. 0 xx Xxxx 000 xx
Xxxxxxxxxx X-X)
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Item 9.01(d): Exhibits (no. 2): o Depositor
Plan of acquisition, reorganization, arrangement,
liquidation or succession (Exhibit Xx. 0 xx Xxxx 000 xx
Xxxxxxxxxx X-X)
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Item 9.01(d): Exhibits (no. 3): o Depositor
Articles of incorporation and by-laws (Exhibit No. 3(i)
and 3(ii) of Item 601 of Regulation S-K)
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S-XI-3
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Item 9.01(d): Exhibits (no. 4): o Trustee
o Certificate Administrator
With respect to instruments defining the rights of
security holders (Exhibit No. 4 of Item 601 of provided, in each case, that this shall in no event be
Regulation S-K) construed to make such party responsible for the initial
filing of this Pooling and Servicing Agreement
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Item 9.01(d): Exhibits (no. 7): o Not Applicable
Correspondence from an independent accountant regarding
non-reliance on a previously issued audit report or
completed interim review. (Exhibit Xx. 0 xx Xxxx 000 xx
Xxxxxxxxxx X-X)
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Item 9.01(d): Exhibits (no. 14): o Not Applicable
Code of Ethics (Exhibit Xx. 00 xx Xxxx 000 xx Xxxxxxxxxx
X-X)
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Item 9.01(d): Exhibits (no. 16): o Not Applicable
Letter re change in certifying accountant (Exhibit Xx.
00 xx Xxxx 000 xx Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 9.01(d): Exhibits (no. 17): o Not Applicable
Correspondence on departure of director (Exhibit Xx. 00
xx Xxxx 000 xx Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 9.01(d): Exhibits (no. 20): o Not Applicable
Other documents or statements to security holders
(Exhibit No. 20 of Item 601 of Regulation S-K)
-----------------------------------------------------------------------------------------------------------------------
Item 9.01(d): Exhibits (no. 23): o Depositor
Consents of Experts and Counsel (Exhibit No. 23(ii) of
Item 601 of Regulation S-K), where the filing of a
written consent is required with respect to material (in
the Form 10-D) that is incorporated by reference in the
Depositor's registration statement.
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Item 9.01(d): Exhibits (no. 24) o Trustee
Power of Attorney (Exhibit No. 24 of Item 601 of
Regulation S-K), but only if the name of any party
signing the Form 10-D, or the name of any officer
signing the Form 10-D on behalf of a party, is signed
pursuant to a power of attorney.
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S-XI-4
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Item 15: Exhibits (no. 99) o Not Applicable.
Additional exhibits (Exhibit Xx. 00 xx Xxxx 000 xx
Xxxxxxxxxx X-X)
-----------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits (no. 100) o Not Applicable.
XBRL-Related Documents (Exhibit No. 100 of Item 601 of
Regulation S-K).
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S-XI-5
SCHEDULE XII
SIGNIFICANT OBLIGORS, RELATED FINANCIAL REPORTING DATES
AND CERTAIN RELATED INFORMATION
(FOR PURPOSES OF SECTIONS 11.06 AND 11.07)
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[POOLED MORTGAGE LOAN FOR WHICH THE RELATED [FINANCIAL STATEMENT DUE DATE] [INITIAL VALUES FOR COLUMNS BB, BP, BT AND BU
MORTGAGE PROPERTY(IES) OR BORROWER(S) ARE (CORRESPONDING TO FIELDS 54--"PRECEDING FISCAL YEAR
"SIGNIFICANT OBLIGORS"] NOI", 68--"MOST RECENT NOI", 72--"MOST RECENT
FINANCIAL AS OF START DATE" AND 73--"MOST RECENT
FINANCIAL AS OF END DATE") ON THE CMSA LOAN
PERIODIC UPDATE FILE]
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Not Applicable Not Applicable Not Applicable
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S-XII-1