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Case: 3:10-cv-00741-wmc . Document #: 55-1 'Filed: 01/.

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EXECUfION'COPY
BEAR STEARNS COMMERCIAL MORTGAGE, INC.
Depositor
BANK OF AMERICA, N.A.
Master Servicer
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
TRUST AND MASTER SERVICING AGREEMENT
Dated as of June 26, 2008
MAIDEN LANE COMMERCIAL MORTGAGE-BACKED SECURITIES TRUST 2008-1
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ARTICLE V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01 Distributions Generally ...................................................... _ .................................. 64
Section 5.02 Distributions from the Distribution Account ........................................................ 64
ARTICLE VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01 Duties of Trustee .................................................................................................... 65
Section 6.02 Certain Matters Affec.ting the Trustee ................................................................... 67
Section 6.03 Trustee Not Liable for Certificates ........................................................................ 68
Section 6.04 Trustee May Own Certificates ........................................................ _ ..................... 69
Section 6.05 Eligibility Requirements for Trustee ..................................................................... 69
Section 6.06 Resignation and Removal of Trustee ..................................................................... 69
Section 6.07 Successor Trustee ................................................................................................... 70
Section 6.08 Merger or Consolidation of Trustee ....................................................................... 71
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian ................................. 71
Section 6.10 Authenticatirig Agents ............................................................ _ ............................. 72
Section 6.11 Indemnification of the Trustee ...................................................... : ................. : ...... 73
Section 6.12 Fees of the Trustee ................................................................................................. 74
Section 6.13 Collection of Monies .............................................................................................. 74
Section 6.14 Events of Default; Trustee To Act; Appointment ofSuccessor .... , ........................ 74
Section 6.15 Additional Remedies of Trustee Upon Event ofDefault ...................................... 77
Section 6.16 Waiver of Defaults ................................................................................................ 78
Section 6.17 Tax Matters ........................................................................................................... 78
ARTICLE VII TERMINATION OF TIlE TRUST FUND
Section 7.01 Termination of Trust Fund Upon Liquidation of All Investments or upon
Surrender of the Certificates ................................................................ : ................. 81
Section 7.02 Procedure Upon Redemption or Termination of Trust Fund ................................. 81
ARTICLE vrn RIGIITS OF CERTIFICATEHOLDERS
Section 8.01 Controlling Party Control; Limitation on Rights of Holders ................................ 82
Section 8.02 ACcess to List of Holders ................................................................................. : ..... 83
. Section 8.03 Acts of Holders of Certificates ............................................................................. 84
Section 8.04 Sale of the Investments by the Certificateholders.: ................................................ 85
ARnCLE IX CONCERNING TIlE MASTER SERVICER
Section 9.01 Assumption of Master Servicing by Trustee .......................................................... 86
Section 9.02 Representations and Warranties of the Master Servicer ........................................ 86.
Section 9.03 Compensation to the Master Servicer .................................................................... 88
Section 9.04 Assignment or Delegation of Duties by the Master Servicer ................................ 89
Section 9.05 Fidelity ................................................................................................................... 89
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ARTICLE X REPORTING REQUIREMENTS
Section 10.01 Annual Statements of Compliance ......................................................................... 89
Section 10.02 Annual Assessments of Compliance ................ _ .. _ ................................................ 90
Section 10.03 Accountant's Attestation. ................................. _ .................................................... 91
Section 10.04 Certain Information Not Required ................... _ .................................................... 91
ARTICLE XI TIlE DEPOSITOR, THE MASTER SERVICER AND TIlE SPECIAL
SERVICER
Section 11.01 Liability of the Depositor, the Master Servicer and the SpeciaJ Servicer .............. 92
Section 11.02 Merger, Consolidation or Conversion of the Depositor, the Master
Servicer or the Special Servicer ........................ _ ................................................... 92
Section 11.03 Limitation on Liability of the Depositor, the Master Servicer, the Special
Servicer and Others: ......................................... _ ............................ : ....................... 93
. Section 11.04 Master Servicer and Special Servicer N9t to Resign ............................................. 96
Section 11.05 Rights of the Controlling Party and'the Trustee in Respect of the Master
Servicer and the Special Servicer .......................................................................... 96
Section 11.06 Survival ............................................................ _ .............................................. _ .... 97
ARTICLE XII MISCELLANEOUS PROVISIONS
Section 12.01 Binding Nature of Agreement; Assignment. ..... : ................................................... 97
Section 12.02 Entire Agreement. ............................................... _ .............................................. ... 98
Section 12.03 Amendment. .. ; ....................................... : ................................................................ 98
Section 12.04 Provision of Information .................................................................................. _ .... 99
Section 12.05 Governing Law ................................................ _ .................................................... 99
Section 12.06 Notices ....................................................... _ ...... _ .................................................... 99
Section 12.07 Severability of Provisions ................................ .................................................. 100
Section 12.08 indUlgences; No Waivers ..................................................................................... 100
. Section 12.09 Headings Not To Affect Interpretation ............ _ .................................................. 100
Section 12.10 Benefits of Agreement ........................................................................................ 100
Section 12.11 Conflicts ........................................................... _ ............................... .................. 1 01
Section 12.12 Counterparts ......................................................................................................... 101
Section 12.13 No Petitions; ................................................................................ 101
Section 12.14 Submission to Jurisdiction; Waiver of Process and Jury ..................................... 101
. . .
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Exhibit A
ExhibitB
Exhibit c
Exhibit D
Exhibit E
Exhibit F
ExhibitG
ExhibitH
Exhibit I
ExhibitJ
ExhibitK
Exhibit L
ExhibitM
Schedule A
Schedule B
Schedule C
ScheduleD
ScheduleE
ATTACHMENTS
Fonn of Certificate
List of Assigned Agreements
Fonn of Rule 144A Transfer Certificate
Fonn of Purchaser's Letter (or Institutional Accredited Investors
Fonn of ERISA Transfer Affidavit
Fonn of Custodian Certification
Relevant Servicing Criteria Matrix.
Fonn of Annual Back-Up Certification
. Special Servicing Provisions
Fonn of Remittance Report
Fonn of Monthly Report
Fonn of Ten ant Exposure Report
JPMorgan Guaranty
Mortgage Loan Schedule
Companion Loan Schedule
Mezzanine Loan Schedule
List of Mortgaged Properties Requiring Replacement Comfort Letters or
Consent to Transfer
Investment Balances as of May 31, 2008
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This TRUST AND SERVICING AGREEMENT, dated as of June. 26, 2008 (the
"Agreement"), by and among BEAR STEARNS COMMERCIAL MORTGAGE, INC., a New
York corporation, as depositor (the "Depositor"), U.S. BANK NATIONAL ASSOCIATION, as
trustee (the "Trustee"), and BANK OF AMERICA, N.A., as master servicer (the "Master
Servicer"). '
PRELIMINARY STATEMENT
The Depositor will acquire the Certificates from the Trustee as for the
Depositor's transfer to the Trust Fund of the Investments and the other propertY constituting the
Trust Fund. The Depositor has duly authorized the execution and delivery of this Agreement to
provide for the conveyance to the Trustee of the Investments and the other property constituting
the Trust Fund. All covenants and agreements made by the Depositor, the Master Servicer and'
the Trustee herein, with respect to the Investments and the other property constituting the Trust
Fund, are for the benefit "of the Holders from time to time of the CertifiCates. The Depositor, the
Trustee aDd the Master Servicer are entering into this AgrCement, and the Trustee is accepting
the Trust Fund created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
It is the intention of the parties hereto that certain portions of the Trust Fund be
characterized as grantor trusts under subpart E, part I of subchapter J of chapter 1 of the Code for
federal income tax purposes and the terms hereof shall be inteIpreted to further this
" "
In consideration of the mutual agreements herein contained, the Depositor, the Master
Servicer and the Trustee hereby agree as follows:
. .
Section 1.01 Definitions.
ARTICLE I
DEFINITIONS
The following words and phrases, unless the context otherwise requires, shall have the
foUowing "
Accountant: A Person engaged in the practice of accounting. and that is acceptable to the
Controlling Party.
Accountant's Attestation: The attestation required from" an Accountant for the Master
Servicer to the extent required under the applicable Assigned Agreement, each" Primary
Servicer pursuant to Section 10.03.
Acknowledgements: The Assignment, Assumption and Recognition Agreements
assigning from the Depositor to the Trustee, for the benefit of the CertificateholdeIS, its rights in
the Assigned Agreements, as specifically identifie.d in Exhibit B.
Advance Interest: The interest accrued on any Servicing Advance at the
Rate, which is payable to the Master Servicer, all in accordance with Section 4.05(b).
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Adverse Claim: A claim that a claimant has a property interest in an Investment and that
it is a violation of the rights of the claimant for another person to hold, transfer, or deal with such '
Investment
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 Trust and Master Servicing Agreement and all amendments and
supplements hereto.
Anticipated Repayment Date: For each ARD Loan, the date specified in the related Note
after which the per annum rate at which interest accrues on such ARD Loan will increase as
specified in the related Note (other than as a result of a default therewtder).
Appraisal: With respect to any Mortgaged Property or REO Property as to which an
appraisal is required to be' performed pursuant to tile tenns of this Agreement or a Special
Servicing Agreement, a narrative appraisal complying with USP AP that (i) indicates the "market
value" of the subject property (within the meaning of 12 C.F.R. 225.62(g and (ii) is
.conducted b)' a Qualified Appraiser.
Appraised Value: With respect to each Mortgaged Property or REO' Property, the
appraIsed vaJue thereof based upon the most r:ecent Appraisal obtained or conducted, as
appropriate, pursuant to this AgreemenL .
ARD Additional Interest: With respect to any' ARD Loan after its Anticipated
Repayment Date, all interest accrued on the principal balance of such ARD Loan at the ARD
Additional lri.terest Rate (the payment of which interest shall, under the tenns of such ARD
Loan, be deferred until the entire outstanding principal balance of such ARD Loan has been
paid), together with all interest, if any, accrued at the related interest rate plus the related ARD
. Additional Interest Rate on such deferred intere:;t For purposes of this Agreement, ARD
Additional Interest on an ARD 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 of such
ARD Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit
To the extent that any ARD Additional Interest is not paid on a current basis, it shall be deemed
to be deferred interesL
ARD Addition8J Interest Rare: With respect to any ARD Loan after its Anticipated
'Repayment Date, the incremental increase in the per. annum rate .at which such ARD Loan
accrues . interest after the Anticipated Repayment Date (in the absence of defuults) as calculated
and as set forth in the related Mortgage Loan Documents.
ARD Loan: Any Mortgage Loan that provides that if the unamortized principal balance
thereof is not repaid on its Anticipated Repayment Date, such Mortgage Loan will accrue ARD
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Additional Interest at the rate specified in the related Note and the related Obligor is required to
apply excess monthly cash flow generated by the related Mortgaged Property to the repayment of
the outstanding principal balance on such Mortgage Loan.
Assessment of Compliance: The certification required from the Master Servicer and, to
the extent required under the applicable Assigned Agreement, each Primary Servicer pursuant to
Section 10.02.
Asset Status Report: As defined in Exhibit I hereto.
Assigned Agreement: The agreements listed under the heading "Assigned Agreements"
in Exhibit B hereto, as each such agreement may be amended or supplemented from time to time
as permitted hereunder.
Authenticating Agent: Any authenticating agent appointed by the Trustee pursuant to
Section 6.10 until any Sl,lccessor authenticating agent for the Certificates is named, and thereafter
"Authenticating Agenr' shall mean any such successor.
Authorized Officer: Any Person who may execute an Officer's Certificate on behalf of
the Depositor or the Master Servicer.
Available Distribution Amount: With respect to any Distribution Date. the total amount
by the Master Servicer in respect of the on tlJ,e immediately preceding
Business Day and all other amounts otherwise on deposit in the Distribution Account on such
date (including amounts received under the JPMorgan Guaranty and the ''Purchase Price" paid
by the Master Servicer under the Servicing Rights Purchase Agreement). less any amounts
payable or reimbursable from such funds to. the Master Servicer or the Trustee under this
Agreement, to the related. Servicers under the applicable Assigned .Agreements or to any other
Person Under the applicable Irivestment Documents or under this Agreement, including without
limitation, (i) interest and investment income realized on the investment of funds in Permitted
Investments payable to the Master Servicer under Section 4.01 (e) hereof: (ii) any Servicing Fees
due to the Servicers, and (fu) any unreimbursed Servicing Advances due to the Master Servicer
or the related Servicers. For the avoidance of doubt, the Available Distribution Amount on the
first Distribution Date shall include (before deduction of the applicable Finance Charge Amount
and any other amounts deductible therefrom in accordance with this Agreement) the Pre-Cut-ofI'
Date Deposit and the "Purchase Price" paid by the Master Servicer under the Servicing.Rights
Pwchase Agreement.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended.
. Business Day: Any day other than' (i) a Saturday or a Sunday or (ii).a day on which
banking institutions in. the City of New York, New York, or the cities in which the Corporate
Trust Offices of the TriJ.stee or the Capital Markets Servicing Group of the Master Servicer are
located, are authorized or obligated by law or executive order to be closed.
CERCLA: The Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended.
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,.
Certificate: Anyone of the certificates signed by the Trustee and authenticated by the
Authenticating Agent in substantially the form attached hereto as Exhibit A and issued pursuant
to this Agreement in definitive, fully registered, certificated form.
Certificate Register and Certificate Registrar: The register maintained. and the registrar
appointed. pursuant to Section 3.02. The Trustee will act as the Certificate Registrar under this
Agreement.
Certificateholder: The meaning provided in the definition of "Holder."
Closing Date: June 26, 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 secwitization industry, which
is the principal such association or organization in the commercial mortgage loan securitization
industry and one of whose principal pwposes is the estabHshment 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 sentence$ of definition does not exist, "CMSA"
,shall be deemed to refer to such other association or organization as shall be reasonably
acceptable to the Master Servicer, the Controlling Party and the 9perating Adviser. ,
CMSA Advance Recovery Report: The monthly report substantially in the form ot: and
containing the information called for in. the downloadable form of "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 secmities transactions
generally. The preparation of each CMSA Advance Recovery Report shall constitute a
responsibility of the Master Servicer and shall not constitute a responsibility of any other party.
CMSA Comparative Financial Stafus Report: A report substantially in the form ot: and
containing the information called for in, the downloadable form of the "Comparative Financial
Status Report" available as of the CI<?sing 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. Each CMSA Comparative
Firiancial Status Report shall be based on (1) the most recent rent roll and (2) to the extent
provided to the Master Servicer, (i) in connection with a CMSA Comparative Financial Status
Report relating to ,quarterly financial infon:nation, trailing 12 months of financial information
(normalized). if trailing 12 months offinancial information was to the Master Servicer.
,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 Master
Servicer and 9 months of operating statements or year-to-date information was
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.'.
provided to the Master Servicer or (ii) in connection with a CMSA Comparative Financial Status
Report relating to annual financial information, annual operating statements (if provided to the
Master Servicer), normalized. To the extent the information described above has been provided
to the Master 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
Investment or piece of related Collateral covered thereby.
CMSA Delinquent Loan Status Report: A monthly report substantially in the form of,
and containing the information called for 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 in(ormation as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities transactions
generally.
CMSA Fmaocial 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 be recommended by the
CMSA for commerciat mortgage-backed securities transactions generally.
. CMSA Historical Loan Modification & Corrected Loan Re.port: A monthly report
substaJitially in the form of, and containing the information called for 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 infomiation as may from tlme to time be recommended by the CMSA for commercial
mortgage..:backed securities transactions generally.
CMSA Investor Re.porting Package: Collectively:
(a) the following electronic data files: (i) CMSA Loan Setup File, (ii) CMSA
Loan Periodic Update File, (iii) CMSA Property File and (iv) CMSA Special Servicer
Loan File; and
(b) the following supplemental reports: (i) CMSA Delinquent Loan Status
Report, (n) CMSA Historical Loan Modification & Corrected Loan Report, (ill) 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 ReservelLOC Report, (ix) CMSA
Reconciliation of Funds Report, (x) CMSA Advance Recovery Report and (xi) CMSA
. Total Loan Report..
. NotwithstaD.di!J.g 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 recommended by the CMSA for commercial
mortgage-backed securities transactions generally, then same shall be used with respect to the
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reporting 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 ReserveILOC 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, 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 .
. CMSA Loan Periodic Undate File: The monthly data file substantially in the form of.
and containing the information called for in, the dOYlllloadable 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.
CMSA Loan Setup File: The data file substantially in the fonn 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 reconimended by the
CMSA for commercial mortgage-backed securities transactions generally.
CMSA NOI Adjustment Worksheet: An annual report substantially in the fonn of, and
containing the information called for in, the downloadable form of the "NOI Adjustment
Worksheet" available as of the Closing Dateon the CMSA Website, or such other form for the
presentation of such information and containing such information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities transactions
generally; 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 containirig 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 infonnation as may from time to time be .reconunended by the
CMSA for conunercial mortgage-backed securities transactions generally.
CMSA Operating Statement Analysis Reoort: A report substantially in the form of, and
containing the information called for in, the downloadable fonn 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 .
CMSA Reconciliation of Funds Report: A monthly reporf; substantially in the form of,
and containing the information called for in, the downloadable fonn of the "Reconciliation of
Funds Report" available as of the Closing Date on the CMSA Website or in such other form for
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the presentation of such information and containing such additional information as may from
time to time be recommended by. the CMSA for commercial mortgage-backed securities
transactions generally.
CMSA REO Status Rg>ort: 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 infonnation as may from time to time be
recommended by the CMSA for commercial mortgage-backed securities transactions generally.
CMSA Servicer Watch List: A monthly report substantially in the form ot: 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 fonn 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.
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 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.
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 Reporr' 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 trans8ctions.
CMSA Website: The CMSA's Website located at "www.cmbs.org" or such other
primary website as the CMSA may establish for dissemination of its report forms.
Code: The Internal Revenue' Code of 1986,.8S
Collateral: With to any Mortgage Loan or Companion Loan, the related
Mortgaged Property. with respect to any Mezzanine Loan, the underlying equity interest and
with respect to any Invesanent, any other collateral pledged under the related Investment
Documents to secure such Investment
Commission: The Securities and Exchange Commission.
Companion Loan: Each pari passu o.r subordinate interest in a multifamily or commercial
mortgage loan that is serviced pursuant to a separate pooling and servicing agreement or
servicing agreement in accordance with a co-lender, participation or intercred.itor arrangement,
deposited with the Trustee pursuant to Section 2.01 and listed on the Companion Loan Schedule.
Companion Loan Schedule: The schedule attached hereto as Schedule B, which shall
identify each Companion Loan, 8S such schedule IIlay be amended by the Master Servicer from
time to time to reflect the removal of Deleted Investments from the Trust Fund.
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Condemnation Proceeds: All cash amounts actually received by the Trust Fund or on
behalf of the Trustee, the Master Servicer or any applicable Special Servicer 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 Obligor or any other third-party in accordance with
applicable law and/or the terms and conditions of the related Investment Docwnents or any other
applicable document
Control Rights: With respect to any Investment, the rights, if any, of any Person to act as
the "directing holder" (or term of substantially similar import howsoever denominated) or in a
similar capacity, or that relate to cure or purchase options, to the extent pennitted by any
applicable Investment Document including for purposes of exercising, (i) either individually or
together with other parties under any such Investment Document, consent rights, control rights,
voting rights, consultation rights, rights to direct servicing and rights-to replace a Servicer and
(ii) any related purchase option or cure rigJIts.
Controlling Party: Federal Reserve Bank of New York so long as Maiden Lane, LLC or
its successor in interest is a Certificateholder and, thereafter, the then current Holder of the single
largest Percentage Interest of the Certificates outstanding or the designee thereof:
Coroorate Trust Office: With respect to the _ Trustee and the Certificate Registrar, the
corporate trust office of the Trustee located at 60 Livingston Avenue
EP-MN-WS3D, St Paul, MN, 55107, Attention: Structured FinancelMaiden Lane CMBS Trust
2008-l or at such other address as the Trustee may designate from time to time by to the
Certificateholders, the Controlling Party, the Opemting Adviser and the Master Servicer or the
principal corporate office of any successor Trustee.
Corrected Loan: Any Mortgage Loan or Serviced Mezzanine Loan that had been a
Specially Serviced but has ceased to be such in accordance with the definition of
"Specially Serviced Loan" (other than by reason of a Liquidation Event occwring in respect of
_ such Mortgage Loan or Serviced Mezzanine Loan or the related Mortgaged Property becoming
an REO
Custodial Accounts: Each custodial account established and maintained by a Servicer
pursuant to an Assigned Agreement
Custodial Agreement: The Custodial Agreement, dated as of the date hereof: among the
Depositor, the Trustee and the Custodian, as such agreement may be or supplemented
from time to time as permitted hereunder.
Custodian: LaSalle Bank National Association and its successors and assigns as
custodian under the Custodial Agreement
Custodian Certification: As defined in Section 2.01(a).
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Cut-off Date: With respect to each Investment, the Due Date for such Investment in June
2008.
Default Interest: With respect to any Investment, any amounts collected thereon, other
than: late payment charges or Prepayment PremiuDis, that represent interest in excess of interest
accrued on the principal balance of such Investment at the related iQterest rate, such excess
interest arising out of a default under such Investment.
Defective Investment: As defined in Section 2.05(a).
Delayed Draw Account: The segregated account or accounts created and maintained by
the Controlling Party pursuant to Section 4.03(a) on behalf of the Trustee in trust for
Certificateholders, which shall be entitled "Bank of America, National Association, as Master
Servicer, in trust for the registered holders of Maiden Lane Commercial Mortgage Pass-Through
Certificates, Series 2008-1, Delayed Draw Account".
Delayed Draw Account Agreement: That certain Custodian Agreement, dated as of June
26, 2008, by and between Bank of America, N.A. and State Street .Bank and Trust Company.
"Delinguent: Any Investment with respect to which the Scheduled Payment due on a Due
Date is not received taking into account any grace period.
Deleted Investment: An Investment which is repurchased pursuant to Section 2.05 or
. pursuant to Section 8.04.
Depositor: Bear Stearns Commercial Mortgage, Inc., a New York corporation hRving its
principal place of business in New York, or its successors in interest.
Designated Accounting Firm: A nationally recognized accounting firm designated by the
Controlling Party by written notice to the Trustee and the Master Servieer. .
Designated Servicing Agreement: The Assigned Agreement dated as of May 6, 2003,
between the Depositor and the Master Servicer, as amended pursuant to the applicable
Acknowledgment or otherwise.
Discount Window: The lending facility of the Federal Reserve Bank of New York
. Distribution Account: The segregated account or accounts created and maintained by the
Master SeMcer pursuant to Section 4.01(b) on behalf' of the Trustee in trust for
Certificateholders, which shall be . entitled "Bank of America, National Association, as Master
Servicer, in trust for the registered holders of Maiden Lane Commercial Mortgage Pass-Through
Certificates, Series Distribution Account".
Distribution Account DepoSit Date: Each Business Day on which any amounts in respect
of the Investments are by the Master Servicer, commenc::ing on the Closing Date.
Distribution Date: The Business Day immediately following each Distribution Account
Deposit Date; provided, however, that (a) the Pre Cut-off Date Deposit Amount, if received by
9
fJ1'W: NYLEGAL:7S6S66.19) 86OQO.OO992 06I'lSI200806:44 PM
the Master Servicer not later than 3:00 p.m. (EDl), on the Closing Date, shall be distributed by
the Master Servicer on the Closing Date and (b) the June Deposit Amount will be distributed on
the next Business Day after deposit into the Account by the Depositor following the
resolution by. the Depositor, the Controlling Party and the Master Servicer of any discrepancies
in accordance with Section 2.07(b).
Due Date: With respect to any Investment, the date on which a Scheduled Payment is
due under the related Note or Participation Certificate, as applicable, pursuant to the applicable
Investment Documents.
Eligible Account: Unless otherwise approved by the Controlling Party, any of: (i) an
account or accounts maintained with a federal or state chartered depository institution or trust
company the short-term unsecured debt obligations o(which (or, in the.case of a.depository
institution or trust company that is the principal subsidiary of a holding .company, the debt
obligations of such holding company) have a rating of "A-I" by S&P or the
equivalent by another Rating Agency at the time any amounts are held on deposit therein,
provided, however, that, within 30 days of a downgrade, the Master Servicer, as Paying Agent,
at its own cost, transfer all fwids held in such account to another account having such
short-term rating at lh:e time any amounts are. held on .deposit therein; (ii) a segregated trust .
account or accounts in a depository institution or trust company in which such accounts are
insured by the FDIC (to the limits established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of Counsel delivered to the
Trustee, the Certificateholders have a claim with respect to the funds in such account" or a
perfected first priority security interest against any collateral (which sh8ll be limited to Pennltted
Investments)" securing such funds that is superior to claims of any other depositors or creditors of
the depository institution or trust company in which such account is maintained; or (iii) a trust
account or accounts maintained with the trust department of a federal or state chartered
depository institution or trust company that is subject to regulations regarding fiduciary funds on
deposit similar to Title 12 of the U.S .. Code of Federal Regulation Section 9.1O(b), which, in
either case, has Corporate ti-ust powers and is, acting in its fiduciary capacity. Eligible Accounts
may bear interest, and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee or the Master Servicer.
Environmental Insurance Policy: With respect to any Mortgaged Property securing a
Mortgage Loan or any REO Property, any insw-ance 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 among others, the
Trustee on behalf of the Holders.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: Anyone of the conditions or circumstances enumerated in
Section 6.14.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder . .
10
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Exchange Date: As defined in Section 7.0 I (b).
Expense Reserve Account: The segregated account or accounts created and maintained
by the Master Servicer pursuant to Section 4.0 I Cd) on behalf of the Trustee in trust for
Certificateholders which shall be entitled "Bank of America, National Association, as Master
Servicer, in trust for the registered holders of Maiden Lane Commercial Mortgage Pass-Through
Certificates, Series 2008-1, Expense Reserve Account". The Expense Reserve Account shan be a
sub-account of the Distribution Account.
FDIC: The Federal Deposit Insumnce Corporation, or any successor thereto.
Final Recovery Determination: ,A determination by the Controlling Party in accordance
with ,the terms and provisions of a Special Servicing Agreement with respect to any Specially
Serviced Loan, Corrected Loan or REO Property; that ,there has been a recovery of all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and other"paymentS or recoveries that
such Special Servicer or the Master Servicer has determined, in accordance with the Servicing
Standard, will be ultimately received by the Trust Fund
Finance Charge Amount: With respect to (i) the period from March 14,2008 through and
including May 31, 2008 and the Pre-Cut-off Deposit, $57,101,562.28 and (ii)the period from
June I, 2008 through and including June 25, 2008 and June Deposit Amount, an amount
equal to (a) the interest accrued over on the outstanding principal balance of the
, Investments for each day in such period computed at the Primary Credit Rate minus (b) an
,amount equ8i to the interest accrued over such period on the balance of all amounts received by
the Depositor on the Investments for each day in such period comPuted at the Primary Credit
Rate.
Fitch Ratings: Fitch, Inc., or any successor in interest
Governmental Authority: Any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization.
Hazardous Materials: Any dangerous, toxic or hazardous pollutants, chemicals, wastes, or
substances, including those so identified PUISuant to CERCLA or any other federal, state or local
environmental related laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas,
petroleum. and petroleum products,-urea formaldehyde and any substances classified as being "in
inVentory", "usable work in process" or similar classification v.:hich would, if classified as
unusable, be included in the foregoing definition.
, Holder or Certificateholder: The registered owner of any Certificate as recorded on the
books of the Certificate Registrar except that, solely for the pmposes of taking any action or
giving any consent pursuant to this Agreement, any Certificate registered in the name Qf the
Trustee, the Master Servicer and any Servicer, or ,any Affiliate thereof, shall be deemed not to be
11
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outstanding in determining whether the requisite percentage necessary to effect any such consent
has been obtained, except that, in determining whether the Trustee or the Master Servicer'shall
be protected in relying upon any such consent, only Certificates which a Responsible Officer of
the Trustee or the Master Servicer knows to be so owned shall be disregarded. Each of the
Trustee and the Master Servicer may request and conclusively rely on certifications by the
Master Servicer (in the case of ' the Trustee), the Trustee (in the case of the Master Servicer) or
any Servicer in detennining whether any Certificates are registered to an Affiliate of the Master
Servicer, the Trustee or any Servicer.
Independent: When used with respect to any Accountant, a Person who is "independent"
within the meaning of Rule 2-01(B) of the Commission's Regulation S-X Independent means,
when with respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any material direct or
indirect financial interest in such other Person or any Affiliate of such other' Person, (C) is not
connected with such other Person or any Affiliate of such other Person as an officer, employee,
promoter, underwriter, trustee, securities administrator, partner, director or Person performing
similar functions and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
Insurance Policy: With respect to any Investment, any applicable insurance policy,
including all names and endorsements thereto 'in effect, including any replacement policy or
policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid under any Insurance Policy (excluding proceeds
required to be applied to the restoration and repair of any related Mortgaged Property or released
to the Obligor pursuant to the applicable Investment Documents), in each case other than any
amolDlt included in such Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an 'Poiicy or any other 'insurance
policy with respect to the Investments.
Inyesbnents: The Mortgage Loans, Companion Loans and Mezzanine Loans set forth on
Schedules A through C, as applicable, and deposited with the Trustee pursuant to Section 2.01.
,Investment Documents: With respect to each Mortgage Loan, the Mortgage Loan
, Documents and with respect, to each Companion Loan ' and Mezzanine Loan, the Note or
Participation Certificate, as applicable, and all other instruments and agreements governing such
Investment, including, without limitation, any applicable participation agreement, administration
agreement, co-lender agreement, intercreditor agreement and pooling and servicing agreement
Inyestment File: With respect to an Investment, the Mortgage File or ,Mezzanine File, as
" applicable.
Item 1123 Certification: The certification required from each of the Master Servicer and
each Servicing Function Participant,pursuant to Section 10.01.
12
[11'W: NYLalAL:7S6S66.19) CWlSI'lOO8 06:44 PM"
JPMorgan 'Guaranty: The Guaranty Agreement, dated as of June 26. 2008. by JPMorgan
Chase & Co. in favor of Maiden Lane LLC and the Trustee. a,copy of which is annexed hereto as
Exhibit M.
June Deposit Amount: As defined in Section 2.07(b) of this Agreement
Liquidation Event: (a) With respect to any Mortgage Loan or Serviced Mezzanine Loan.
any of the following events: (i). such Mortgage Loan or Serviced Meznnine Loan is paid in full.
(ii) a Final Recovery Detennination is made with respect to such Mortgage Loan or Serviced
Mezzanine Loan, (iii) such Mortgage Loan or Serviced Mezzanine Loan is sold, (iv) such
Mortgage Loan or Serviced, Mezzanine Loan is paid off or purchased by the holder of a related
meZ7Jlnine loan or another creditor of the related Obligor in connection with a Mortgage Loan or
Serviced Mezzanine Loan default, if so permitted and set forth in a related intercreditor
agreement; and (b) with respect to any REO Property. a Final Recovery Detennination is made
with respect to such REO Property.
Liquidation Expenses: All customary. reasonable and necessary "out-of-pocket" costs
and expenses due and owing (but not otherwise covered by Servicing Advances) in
with the liquidation of any Specially Serviced Loan or REO Property pursuant to the terms and
provisions of this Agreement or an applicable Special SelVicing Agreement (including'
reasonable legal fees and expenses. committee or referee fees and. if applicable. brokerage
commissions and conveyance taxes).
Liquidated Investment: With respect to any Distribution Date. a defaulted Investment
(including any REO Property or REO Other Collateral) which was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the related Servicer has
, certified (in accordance with its Assigned' Agreement) that it has received all amounts it expects
to receive in connection with the liquidation of such Investment including the final disposition of
an REO Property or REO Other Collateral. as applicable. '
Liquidation Proceeds: Amounts. including Insurance Proceeds. received in connection
with the partial or complete liquidation of defaulted Investment. whether through trustee's sale.
foreclosure sale or otherwise or amounts received in connection' with any condemnation or
partial releaSe of Collateral and any other proceeds received in cOnnection with an REO Property
, -
or REO Other Collateral.
Make-Whole Payment As defined in Section ,5 of the Servicing Rights Purchase
Agreement
Master Servicer: Bank of America, NA. and any Person succeeding as master servicer
hereunder or any successor in interest, if any successor master semcer shall be appointed as
, herein provided, then such successor master setvicer.
MERS: Mortgage Electronic Registration Systems. Inc., a corporation organized and
existing under the laws of the State of Delaware. or any successor to the Mortgage Electronic
Registration Systems, Inc. '
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MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording tIBnsfers of mortgages electronically
maintained by MERS.
Mepanine File: With respect each Mezzanine Loan, the following documents, as
applicablt; collectively:
(i) Either (a) the original executed Nott; endorsed "Pay to the order of U.S.
Bank National Association, as Trustee for the registered holders of the Maiden Lane
Commercial Mortgage-Backed Securities Trust 2008-1, 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 Note has been lost, a lost
note affidavit and indemnity from the Depositor in form and substance reasonably
acceptable to the Controlling Party with a copy of such Note; or (b) the original executed
Participation Certificate endorsed or assigned to "U.S. Bank National Association, as
Trustee for the registered holders of. the Maiden Lane Commercial Mortgage-Backed
Securities Trust 2008-1, 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 Participation Certificatehas been lost, a lost
certificate affidavit and indemnity from the Depositor in fOl1Il and substance reasonably
acceptable to the Controlling Party with a copy of such Participation Certifjcate;
(ii) an original or copy of the loan agreement and all guarantees and
indemnities, if any, executed in with the Mezzanine Loan;
(iii) an original or copy of the related intercreditor agreement and co-Iender
agreement (vis-a-vis the related mortgage loan and vis-ii-vis any other Mezzanine Loan),
if any;
. (iv) an original or copy of .the pledge and security agreement executed in
with the Mezzanine Loan;
(v)
Obligor;
copies of all documents relating to the formation and organization of the
(vi) an original or copy of any participation agreement, any admjoistmtion
agreement and/or servicing agreement relating to such Mezzanine Loan, if applicable;
(vii) an original or copy of any .interest rate cap agreement applicable to the
Mezzanine Loan, if any;
(viii) an original of the assigriment and assumption executed by the Depositor
and the Trostee with respect to such Mezz8nine Loan;
(ix) copies of the original certificates representing the pledged equity interests.
if any;'
14
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(x) a copy of the UCC title insurance policy together with all endorsements
thereto, if any;
(xi) 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 instrwnent being modified or assumed, was
recorded (unless the particular item has not been returned from the applicable recording
office), in those instances wllere the terms or provisions of the Loan, Note or
any related security document have been materially modified or the Mezzanine Loan has
been assumed;
(xii) an original or copy of any letters of credit, if any;
(xiii) (A) filed copies (with evidence of filing) of any prior effective UCC
Financing Statements in favor of the originator of such Investment or in favor of any
prior assignee thereof (but only to the extent the Depositor had possession of such UCC
Financing Statements prior to the Closing Date) 'and (B) an original assignment thereof,
in form suitable for filing, in favor of "U.S. Bank National Association, in its capacity as
Trustee for the registered holders of the Maiden Lane Commercial Mortgage-Backed
Securities Trust 2008-1";
(xiv) an original or copy of any documents not otherwise described in the
preceding clauses of this definition relating to, evidencing or constituting Collateral for
such Mezzanine Loan and, if applicable, the originals or copies of any intervening
assignments thereof;
(xv) an original or a copy of the lock-box agreement or cash management
agreement-relating to such Investment, ifany; .
(xvi) an original or a copy ,of the environmental from the related
Obligor or other party, if any; and
(xvii) a checklist of the applicable documents described above 'and delivered in
connection with the origination of such Investment (which 'checklist may be in a
reasonable form selected by the DepOsitor);
. provided, however, that whenever the teIDl "MeZ'ZllOine File" is used to refer to
documents received by the Custodian, such term shall not be deemed to include such documents
required to be included therein unless they are actually so received.
Mezzanine Loan: Each loan, or participation interest therein, primarily secured by a
pledge of full or partial equity ownership interestS in one or more entities that own directly or
indirectly multifamily or commercial properties deposited with the Trustee pursuant to Section
2.01 and listed on the Mezzanine Loan Schedule.
Mezzanine Loan Schedule: The schedule attached hereto as Schedule C, which shall
identify each Mezzanine Loan, as such schedule may be amended by the Master Servicer from
time to time to reflect the removal of Deleted Investments from the Trust Fund.
15
[TPW: NYLOOAL:7S6S6fi.19) 86000-00992 06flSI2008 0&:44 PM
Monthly R.e,port: As defined in Section 4.02(b).
Monthly Rmorting Date: The second Business Day after the 25
th
calendar day (or the
next succeeding Business Day if such 25th calendar day is not a Business Day) of each month.
Moody's: Moody's Investors Service, Inc., or any successor in interest
Mortgage: A mortgage, deed of trust, deed to secure debt or other instrument
encumbering a fee simple and/or leasehold interest in real property a Note, together
with improvements thereto.
Mortgage File: With respect to any Mortgage Loan or Companion Loan, the following
. documents collectively:
(i) Either (a) the original executed Note, endorsed on the face
thereof or . pursUant to a separate allonge) "Pay to the order of U.S. Bank National
Association, as Trustee for the registered holders of the Maiden Lane Commercial
Mortgage-Backed Securities Trust 2008-1, 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 Note has been lost, a lost note
affidavit and indemnity from the Depositor in fonn and substance acceptable
to the Cpntrolling Party with a copy of such Note; or (b) the original executed
Participation Certificate endorsed or assigned to "U.S. Bank National Association, as
". Trustee for the registered holders of the Maiden Lane Commercial Mortgage-Backed
Securities Trust 2008-1, 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 Participation Certificate has been lost, a lost
certificate affidavit and indemnity from the Depositor in form and substance reasonably
acceptable to the Controllin'g Party with a copy of such Participation Certificate;
(ii) an original or a copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof to the most recent assignee of
record thereof (which, in the case of each Mortgage Loan, may be MERS), in each case
(unless the particular item has been delivered to not returned from the 'applicable
recording office) with evidence of recording indicated thereon; provided. that if the
origiDal (or, in the case of a a copy) of *e:M;oqgage 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 fCCOrding
office retains the'origina1 or because such original Mortgage bas I?een lost, there shall be
delivered to the Custodian a true and correct copy of such Mortgage, together with (A) in
the case of a delay caused by the public recording office, an Certificate of the
Depositor or a statement from the title agent to the effect that such original Mortgage bas
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
16
[11'W: N'YlMAL:756S66.1!il) 0&1251200806:44 PM
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 Investment to the most recent assignee of record thereof
(which, in the case of each Mortgage Loan, may be MERS), if any, in each case (unless
the particular item has not been returned from the applicable recordi.lig office) with
evidence of recording thereon;
(iv) except in the case of a Companion Loan, an original executed
assignment, in recordable form (except for recording information not yet available if the
instrument being assigned bas not been returned from the applicable recording office), of
(A) the Mortgage and (B) any related Assigrunent of Leases (if such item is a document
separate from the in favor of "U.S. Bank National Association, in its capacity
as Trustee for the registered holders of the Maiden Lane Commercial Mortgage-Backed
Securities Trust 2008-1"; provided. however. that, in the <;ase of MERS Mortgage
Loan, 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 Depositor shall take
all actions as are necessary to cause the Trustee t9 be shown as, and the Custodian shall
take all actions neeSsary to confirm (and shall place into the Mortgage File such
confinnation in writing from MERS) that the Trustee 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 MJ;:RS is unableto foreclose on
any Mortgaged Property or to take any action as authorized in the related Mortgage, the
Master Servicer or the Special Servicer, as 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 sUGh assignments as are necessary to
effectuate a transfer of the relevant documents from MERS to the Trustee on behalf of
the Trust Fund (provided that the Master Servicer or the Special Servicer, as the case may
be, shall mke 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 Seivicing Standard, (y) expose the
Master Servicer OJ; 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 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 Fund is the owner of the
related Mortgage; . '
(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 Investment to the most recent assignee of record thereof prior to the
Trustee (which, in the case of a MERS Mortgage Loan, may be MERS). if any;
17
[lPW: NYLEOAL:7S6S66.19) 8600().()()992 06I2SI2008 06:44 PM
(vi) except in the case of a Companion 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 "U.S. Bank: National Association, in its capacity as Trustee for
the registered holders of the Maiden Lane Commercial Mortgage-Backed Securities Trust
2008-1 ", 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 MERS Mortgage Loan, no assignm.ent of a related security
agreement in favor of the Trustee will be required to be prepared or delivered and instea4,
the Depositor shall take all actions as are necessary to cause the Trustee to be shown as,
and the Custodian shall take all actions necessary to confinn.(and shall pJace into the
Mortgage File such confirmation in writing from MERS) that the is shown as, the
sole owner of the reJated Mortgage on the records of MERS for purpoSes of the system of
transfers of beneficial ownership of maintained by MER.s;
(vii) originals or copies of any written assumption, modification,
assurance, consolidation, extension and substitution agreements, if any, with evidence of
recording thereon if the applicable document or instrument being modified or asswned,
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, Note
.. or any related .security document have been materially modified or the Investment has
been assumed;
(viii) the original or a copy of the policy or certificate of Jender's title
inswance issued in connection with such Investment (or, if the policy has not yet been
issued, an origiruiI or copy of a written commitment "marked-up" at the closing of such
Investment, interim binder or the pro forma title insurance policy, in each case
evidencing a binding commitment to issue such policy); .
. (ix) (A) fiJed copies (with evidence of pJing) of any prior effective
UCC Financing Statements in favor of the originator of such Investment or in favor of
any prior assignee thereof (but only to the extent the Depositor had possession of such
UCC Financing Statements prior to the CJosing Date) and (B) except in the case of a
Coinpanion Loan, an original assignment thereof, in form suitabJe for fiJing, in favor of
"U.S. Bank National Association, in its capacity as Trustee for the registered hoJders of
the Maiden Lane Commercial Mortgage-Backed Securities Trust 2008-1" or in bJank, in
a fonn that is complete and suitable for fiJing or recording, and sufficient to assign to the
Trustee the security interestheJd by the originator of the Mortgage Loan or its assignee;
provided. however, that if the related Mortgage is a MERS Mortgage Loan, no UCC
Financing Statement in filvor of the Trustee will be required to be prepared or deJivered
and instead, the Depositor shall take alJ actions as are to cause the to be
shown as, and the Custodian shaiI take aU actions necessary to confum (and shaH place
into the Mortgage File such confinnation in writing from MERS) that the Trustee is
shown as, for pwposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS, the sole owner of any reJated uec Financing
Statements on record with the applicable fiJing office;
18
[J1'W: NYIJ:OAL:756S66.19] II6ClOO--OO992 06'251200806:44 PM
(x) the original or a copy of any power attorney, guaranty, loan
agreement, Ground Lease and/or Ground Lease estoppels relating to such Investment;
(xi) except in the case of a Companion Loan, any original docwnents
not otherwise described in the preceding clauses of this definition relating to, evidencing
or constituting Collateral for such Mortgage Loan (except that, in the case of such
documents, ifany, that are in the form ofa letter of credit, either (x) the "Mortgage File"
shall initially contain the original of such letter of credit (and a of such letter of
credit initially be delivered to the M.8ster Servicer) and, thereafter, such original
shall be delivered to the Master Servicer (with a copy of such letter .of credit to be
maintained by the Custodian) with reasonable promptness following request . in
connection with the Master Servicer's performance of its duties hereunder, or (y) the
"Mortgage shall initially contain a QRY of such letter of credit the original of
such lett;er of credit shall initially be delivered to the Master Servieer (or a Pfunary
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 agreement or cash
manageinent agreement relating to such Investment, ifany;
(xiii) an original or a copy .of the environmental indemnity from the
related Obligor or other party, if any;
(xiv) an original or a copy of any mtercreditor agreement, participation
agreement, agreement or similar relating to such Investment;
(xv) 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
Obligor;
(xvi) an original or a copy of any master operating lease with respect to
the related Mortgaged Property; .
(xvii) an original or a copy of any related environmental insurance
policy;
(xviii) if the related Mortgaged Property is a hospitalityproperty that is
subject to a franchise or similar auangement, (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 (including the Trustee and its
permitted successors and assigns) of the Investment in connection with the origination or
acqUisition of the Investment or (ii) a copy of the comfort letter delivered by the
or similar person for the benefit of the holder of the Investment in connection
with such origination or acquisition of the Investment; and
19
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(xix) a checklist of the applicable documents described above and
delivered in connection with the origination of such Investment (which checklist may be
in a reasonable fonn selected by the Depositor);
.
provided. however. that (A) whenever the term "Mortgage File" is llSe>d to refer to documents
received by the Custodian, such tenn shall not be deemed to include such documents required to
be included therein unless they are actually so received; and (B) the "Mortgage File" for .8
Companion Loan shall only be required to contain copies of the documents listed in clauses (Ii)
through (xviii) of this definition (other than those docwnents descnbed in clauses (iv), (vi) and
(ix)(B) and (xi) of this definition which shall not be required) unless the Custodian has
possession of the mortgage file for the related mortgage loan in its capacity as trustee or
custodian of such related mortgage loan (in which case the Mortgage File will be deemed to
contain copies of such documents) and shaH also include a copy of the related servicing
agreement under which such Companion Loan is serviced pursuant to the applicable co-lender or
mtercreditor agreement in effect as of the Closing Date.
Mortgage Loan: Each commercial mortgage or participation interest therein,
deposited with the Trustee pursuant to Section 2.01 and listed on the Mortgage Loan Schedule.
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 Investment File and/or
Servicing File. '
Mortgage Loan The schedule attached hereto as Schedule A, which shall
identify each Mortgage Loan,. as such schedule may 'be amended by the Master Servicer from
time to time to reflect the removal of Deleted Investments from the Trust Fund. Such schedule
shall. among other things, identify the Primary Servicer servicing Mortgage Loan and the
applicable Servicing Fee Rate. '
. Mortgaged Proper1;Y: With respect to any Mortgage Loan or Companion Loan, the real
property (together with any improvements and fixtures thereon) Securing such Investment WIth
respect to any Mezzanine Loan, the mortgaged property that is owned
(directly or indirectly) by the Person the equity of which is pledged as collatem1 security for such
Mezzanine Loan. . ,
Note: The original executed note or other evidence of the indebtedness of an Obligor
under an Investment.
Notice of Sale: Written notice provided to the Master Servicer and the Trustee with
respect to a sale of Investments pursuant to Section 8.04 identifying the Investments' to be sold,
the total price to be' paid for such Investments, the purchaser of such Investments and the date of
such purchase. .
Obligor: The obligor on a Note.
Officer's Certificate: A certificate signed by two Authorized Officers of the Depositor or
the Master Servicer and delivered to the Trustee, the Controlling Party and/or. the Operating
Adviser, as the case may be, as required by this Agreement
20
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Operating Adviser: Any Person designated by the Controlling Party to exercise its rights
and powers hereunder in accordance with Section 4.1 O(a).
Opinion of Counsel: A written opinion of counsel, reasonably acceptable in fonn and
substance to the Trustee or the Master Servicer, as required hereby, but which must be
Independent outside counsel with respect to any such opinion of counsel.
Participation Certificate: With respect to any Investment that constitutes a participation
interest (or participation sub-interest) in a Mortgage Loan, Companion Loan or Mezzanine LoaD;
-the original executed participation certificate or trust receipt evidencing such particiJ)8:tion
interest (or participation sub-interest).
. .
Paying Agent: Any paying agent appointed. pursuant to Section 3.07. The initial Paying
Agent shall be the Master . . .
PCAOB: The Public Company Accounting Oversight Board .
. Percentage Interest: With respect to any Certificate, its percentage interest in the
undivided beneficial ownership interest in the Trust Fund evidenced by all Certificates. With
respect to any Certificate, the Percentage Interest evidenced thereby shall be as specified on the
face thereof. .
Pennitted Investments: At any time, anyone or more of the following obligations and
securities:
(i) obligations of the United States or any agency thereof, provided that such
obligations are backed by the full faith and credit of the United States;
(ii) commercial or finance company paper which is then receiving the highe$t
commercial or finance company paper rating of any Rating Agency rating such paper;
(iii) certificates of demand or time deposits, or bankers' acceptances
issued by any depository institution or trust company incorporated under the laws of the
.. United States or of any state thereof and subject to supervision and examination by
federal and/or state banking authorities, :provided that the paper and/or long-
tenn unsecured debt obligations of such depository institution or trust company (or in the
case of the principal depository institution in a holding company system, the commercial
paper or long-term unseCured debt obligations of such holding company) are then rated
one of the two highest long-term and the highest short-term ratings of each Rating
J\gency for such securities; .
(iv) demand or time deposits or certificates of deposit issued by any bank or
trust company or savings institution to the extent that such deposits are fully insured by
the FDIC;
. (v) repurchase obligations with respect to any security described in clauses (i)
and (ii) above, in either case entered into with a depository institution or trust company
(acting as principal) described in clause (iv) above;
21
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(vi) securities (other than stripped bonds, stripped coupons or instrwnents sold
at a purchase price in excess of 115% of the face amount thereof) bearing "interest or sold
at a discount issued by any coIpOration incorporated under the laws of the United States
or any state thereof which, at the time of such investment, have one of the two highest
ratings of any Rating Agency; and
(vii) units of money market funds sponsored by any trust company or national
banking association incorporated under the laws of the United States or any state thereof
which on the date of acquisition has been rated by each Rating Agency in their respective
highest applicable rating category.
provided, that any Permitted Investment shall be payable on demand or mature not later
than 30 days (or such shorter period as required by this Agreement) after the date of acquisition
thereof on behalf of the Trust Fund.
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.
Phase I Environmental Assessment: A "Phase I assessment" as described in, and meeting
the criteria ot; the AmeriCan Society for Testing' and Materials, plus a radon and asbestos
inspection.
Plan: Any employee benefit plan or other arrangement subject to Part 4 of Title I of
ERISA or Section 4975 of the Code or any materially similar applicable law.
Potentially Nonrecoverable Servicing Advance: As dermed in 4.05(a).
Pre-Closing Date Performance Data: All infonnation provided by or on behalf of
. the Depositor with respect to the performance of the Investments prior to the Closing Date for
the purpose of establishing the initial data set on which all reports, remittances and distributions
hereunder will be based (Insofar as they relate to any period prior to the Closing Date), including
without limitation (a) the schedule of the balances of the Investments as of May 31, 2008
annexed hereto as Schedule E, (b) a CMSA Loan Set-up File, (c) underwritten cash flow data
and (d) the' amount of the Pre-Cut-off Date Deposit (and the amount thereof allocated to each
Investment). . .
Pre-Cut-off Date Deposit: An amount equal to all payments and collections on the
Investments from and including March 14, 2008 to and including May 31, 2008 for each such
. Investment
Prepayment Premiums: With respect to each Investment, any prepayment charge, yield
maiJitenaoce spread maintenance premium .or penalty interest required to be paid by
. the related Obligor in connection with a prepayment of such Investment, as provided in the
related Investment Documents.
Primm:y Credit Rate: For any day, the primary credit rate on such day charged by the
Federal Reserve Bank of New York for loans under its Discount Wmdow program as published
22
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....
on the Fedeml Reserve Discount Wmdow internet site under the column titled "Primary Credit
Rate" at http://www.frbdiscountwindow.omlcurrentdiscountrates.cfm?hdrID=20&dtlID=51 or, if
not available on such internet site, as otherwise determined or published by the Federal Reserve
Bank of New York.
Primary Servicer: With respect to each Serviced Mezzanine Loan and each Mortgage
Loan, the servicer servicing such Mezzanine Loan or Mortgage Loan pursuant to an Assigned
Agreement.
Principal Prepayment: Any payment of principal or other recovery of principal on an
Investment that is recognized as having been received or recovered in advance of its scheduled
Due Date and applied to reduce the principal balance of such Investment in accordance with the
tenDS of the related Investment Documents.
Privileged Person: Any of the following: a party to this Agreement, .a designee of the
Depositor, a Certificateholder and any Person who certifies to the Trustee that such Person is a
prospective purchaser of a Certificate or any interest therein.
PTP Tax Holder: As defined in Section 6.17(d).
Purchase Price: With respect to any Investment required to be repurchased by the
Depositor pursuant to this Agreement, an amount equal to the sum of (i) 100% of the unpaid
principal balance of the Investment on the date of such purchase multiplied by the related
Purchase Percentage, (ii) accrued interest on such Investment at the applicable net interest
rate from the date through which interest was last paid by the Obligor to the Due Date in the
month .in which the Purchase Price is to be distributed to Certificateholders and any
Servicing Advances or expenses incurred with respect to such Investment and not reimbursed
from collections or proceeds of Investment including Special Servicing Fees.
With respect to any Investment by a third party pursuant to Section 8.04 of this
Agreement, the amount specified in' the Notice of Sale.
Purchase Price Percentage: set forth in Schedules A through C, for each of the
Mortgage Loans, Companion Loans and Mezzanine Loans, respectively.
. .
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.
Rating Agency: Any of Fitch Ratings, Moody's and S&P.
Record Date: As to any Distribution Date, the last Business Day of the month
immediately preceding the month of such Distribution Date.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17C.F.R.
229.1100 - 229.1123, as such may be amended from time to time, and subject to such
clarification and inteIpretation 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, 1,531 (Jan. 7,
23
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2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
Reimbursement Rate: The rate per annum applicable to the accrual of Advance
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 Controlling Party 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 Controlling Party shaH select a comparable interest rate index. The Controlling
Party shall notify the Master Servicer in writing of its selectiolL
Relevant Servicing Criteria: The Servicing Criteria applicable to the various parties, as
set forth on Exhibit G attached hereto. For clarification purposes, multiple parties can have
responsibility for the same Relevant Servicing Criteria. With respect to a Servicing Function
Participant engaged by the Master Servicer or any Primary Servicer, the term "Relevant
Servicing Criteria" may refer to a portion of the Relevant Servicing Criteria applicable to such
parties.
Remittance Report: As defined in Section 4.02(a).
REO Acguisition: The acquisition of any REO Property pursuant to the terms and
provisions,ofany applicable Servicing Agreement.
REO Disposition: The sale or other disposition of any REO Property pursuant to the
. terms and. provisions of any applicable Special Servicing Agreement.
REO Other Collateral: Equity interests in a 'Person acquired by the Trust Fund or a
nominee thereof, in connection with a defaulted Mezzanine Loan.
. REO Pro,perty: A Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-liet,l of foreclosure in cOIUlection with a defaulted Mortgage Loan .
. 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
. fiom the REO Disposition of such REO Property.
Responsible Officer: With respect to the Trustee, any officer in the corpomte trust
department Trustee with direct responsibility for the administration of this Agreement
S&P: Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies,
Inc.
Scheduled Payment: The scheduled monthly payment on an due on any Due
Date and allocable to principal and/or interest on such Invesbnent.
Securities Act: The Securities Act of 1933, as amended, and the rules and regulations
thereunder.
24,
I,TPW: NYLEGAL:7S6S66 .. 19] 86000-00992 06f25I2008 06:44 PM
Serviced Mezzanine Loan: Each Mezzanine Loan that is serviced on behalf of the Trustee
by a Primary Servicer pursuant to an Assigned Agreement
Servicer: With respect to each Mortgage Loan and Serviced Mezzanine Loan, the
Primary Servicer, with respect to each Companion Loan, the master or special servicer servicing
such Companion Loan pursuant to the applicable pooling and servicing agreement governing the
servicing of such Companion Loan; and, with respect to each Mezzanine Loan (other than a
Serviced Mezzanine Loan), the servicer, administrator and/or other Person performing the
servicing and administrative functions in respect of such Mezzanine Loan pursuant to the
applicable Investment Documents governing servicing and administration of such Mezzanine
Loan,
Service(s)(ing): In accordance with Regulation AB, the act of servicing and
administering the Investments or any other assets of the trust created hereby 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 commooly understood by
participants in the commercial mortgage-backed securitization market
Servicing Advance: A "Servicing Advance", "Servicing Expense" or ''Property
ProtectiQD Advance" (or such term of substantially similar import, however denominated) as
defined in the applicable Assigned Agreement or Investment DocUments or, with respect to the
Master Servicer or applicable Special Servicer hereunder, all customary, reasonable and
necessary "out-of-pocket" costs and expenses, including reasonable attorneys' fees and expenses,
incUITed or to be incurred, as the context requires, by the Master Servicer or the applicable,
Special Servicer in connection with the servicing ofan Investment, including any such costs and
expenses associated with (a) the payment of delinquent taxes or ground lease payments, (b) the
preservation, insurance, restoqltion, protection and management of a Mortgaged Property" REO
Property or REO Other Property, (c) the cost of any "force insurance policy purchased
by the Master Servicer. , (d) obtaining any Insurarice Proceeds. condemnation proceeds or
Liquidation Proceeds iIi respect of any Investment, (e) any enforcement or judicial proceedings
with respect to any Investment, including and similar proceedings, (f) the operation,
management, maintenance and liquidation of any REO Property, (g) obtaining any Appraisal
required to be obtained hereunder, and (h) UCC filings (to the extent that the costs ,thereof are
not reimbursed by the related Obligor); provided notwithstanding anything to the contrary,
c'Servicing Advances" shall not include (A) allocable overhead of the 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 or (B) costs or expenses expressly required under this Agreement to be borne by
the Master Servicer, a Special Servicer or the Trustee.
Servicing Criteria: The criteria set forth ill paragraph (d) ofItem 1122 of Regulation AB,
as such may be amended from time to time',
, Servicing Fee: With respect to any Mortgage Loan or Serviced Mezzanine Loan, the fee,
if any. payable to the Servicer under the applicable Investment Documents.
25
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Servicing Fee Rate: With respect to each Investment and any Distribution Date. the rate
specified in the related Assigned Agreement
Servicing Fi1e: With respect to each Investment, the file held by the Master Servicer
consisting of originals or copies of those documents that the Master Servicer determines in
accordance with the Servicing Standard are required to enable it to perform. its servicing
obligations under this Agreement
Servicing Function Participant: Any Sub-Servicer . Subcontractor or any other Person.
other than each Servicer and the Master S e r v i c e ~ that is perfonniog material activities addressed
by the Servicing Criteria. .
Servicing Officer: Any officer of a Primary Servicer involved in. or responsible for. the
administration and servicing of the related Mortgage Loans or Serviced Mezzanine Loans whose
name and facsimile signature appear on a list of servicing officers furnished to the Master
Servicer by such Primary Servicer pursuant to the related Assigned Agreement as such list may
from time to time be amended
Servicing Rights Pwchase Agreement: The Servicing Rights Pwchase Agreement, dated
as of the date hereof: between the Master Servicer and the Trustee. as such agreement may be
amended or supplemented from time to time as permitted hereunder.
Servicing Standard: With respect to the Master Servicer and any Special Servicer. to
service and administer the Investments pursuant to this Agreement or any.applicable Special
Servicing Agreement in the best interests and for the benefit. of the Holders as a collective whole.
in accordance with applicable law and the terms of this Agreement or any applicable Special
Servicing Agreement, and the respective Investment Documents 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
admjnisters comparable mortgage loans or mezzanine loans and manages real properties
on behalf of third parties or on behalf of itself, whichever is the higher standard with
respect to investments that ate comparable to those for which it is responsible hereunder.
giving due consideration to customary and usual standards of practiCe utilized by prudent
institutional com.mercial mortgage or mezzanine loan servicelS under comparable
circumstances; . .
(b) . with a view to the timely collection of all Scheduled. Payments.
including balloon payments under the Investments; and .
(c) without regard to (i) any relationship that the Master Servicer or
any applicable Special Servicer. as the case may be. or any of its Affiliates may have with
a related Obligor or any other party to this Agreement or any applicable Special Servicing
Agreement, (li) the ownership of any Certificate or any interest in any other Investments
by the Master Servicer or any applicable Special Servicer. as the case may be. or any of
its Affiliates. (ill) the obligation of the Master Servicer to make Servicing Advances.
(iv) the right of the Master Servicer Or any applicable Special Servicer. as the case may
be. or any of its Affiliates to receive reimbursement of costs. or the sufficiency of any
26
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compensation payable to it, hereunder or with respect to any particular transaction, (v)
any ownership, servicing and/or management by the Master Sexvicer or any applicable
Special Sexvicer, as the case may be, or any of its Affiliates, of any other loans or real
property and (vi) the ownership by the Master Servicer or any applicable Special
Sexvicer, 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 Obligors or any Affiliate of an Obligor or the
obligation to extend credit to any of the Obligors or any Affiliate of an Obligor.
Servicing Transfer Event: With respect to any Mortgage Loan or Serviced Mezzanine
Loan, upon the written direction of the Controlling Party following the occurrence of any of the
events described in clauses (a) through (h) of the definition of "Specially Sexviced Loan".
Special Servicer: As defined in Section 4.08(a).
Special Servicing Agreements: As defined in Section 4.08(a).
Special Servicing Fees: As defined in Section 4.08(a).
Specially Serviced Loan: Any Mortgage Loan or Serviced Mezzanine Loan as to which
any of the following events has occurred:
(a) the related Obligor has failed to make when due any balloon
payment; or
. (b) the related 9bligor has fiilled to make. when due any Scheduled
Payment (other than a balloon payment) or any other payment (other than a balloon
payment) reqUired under the related Investment Documents, which failure has continued
unremedied for 60 days; or
(c) the Controlling Party determines that any other material demult has
occurred for which it eleCts to declare such Mortgage Loan or Serviced Mezzanine Loan
as a Specially Serviced Loan; or
(d) a decree or order of a court or agency or supervisory' authority
having jurisdiction in the premises in an involuntary case under any present or future
federal or state bankruptcy, insolvency or similar law or the appointment of a consexvator
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 relate4 Obligor and such decree or order shall have
remained in force undischarged or unStayed for a period of 60 days or such lesser or
longer period determined by the Controlling Party; or
(e) the related Obligor shall have consented to the appOintment of a
conservator or receiver or liquidator in any insolvency, of debt, marshalling
of assets and liabilities or proceedings of or relating to such Obligor or of or
relating to all or substantially all of its or
27
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(f) the related Obligor shall have admitted in writing its inability to
pay its debts generally as they become due, filed a petition to take advantage of any
applicabJe insolvency or reorganization statute, made an assignment for the benefit of its
creditors, or voluntarily suspended payment of its obligations; or
(g) the applicable Servicer or the Master Servicer shall have received
written notice of the commencement of foreclosure or similar proceedings with respect to
the related Mortgaged Property or other Collateral;
. provided, that a Mortgage Loan. or Serviced Menanine Loan will cease to be a Specially
Serviced Loan when a Liquidation Event has occurred in respect of such Mortgage Loan or
Serviced Mezzanine Loan, or at such time as the Controlling Party determines that any such
default has been resolved.
State Street: State Street Bank and Trust Company.
Subcontractor: Any vendor, subcontractor or other Person that is not responsible for the
overall servicing of Investments but performs one or more discrete functions identified in Item
1122( d) of .Regulation AB with respect to Investments Under the direction or authority of a
Servicer (or a Sub-Servicer of any Servicer) or the Master Servicer.
Sub-Servicer: Any Person that services Investments on behalf of any Servicer, and (iii) is
responsible for the performance (whether directly or through sub-Servicer or Subcontractors) of
Servicing functions required to be perfonned under this Agreement, any related Assigned
Agreement or any sub-servicing agreement that are identified in Item 1 1 22(d) of Regulation AB.
Tenant Exposure Report: As defmed in Section 4.02(d).
Trust Fund: The cOIpUS of the trust created hereby and to be administered hereunder,
consisting of: (i) such Investments as from time to time are subject to this Agreement, including
theInvestment Files and Servicing Files relating thereto; (ii) payments, collections and proceeds
. received on or with respect to the Investments after the Cut-off Date; (iii) the Pre-Cut-off Date
Deposit and the June Deposit Amount; (iv) any REO Property or REO Other Collateral (to the
extent of the Trust Fund's interest therein); (v) all revenues and proceeds received in respect of
any REO Property or REO Other Collateral (to the extent of the Trust Fund's interest therein);
(vi) the Inswance Policies and any Insurance Proceeds (to the extent of the Trust Fund's interest
therein); (vii) any letters of credit, indemnities, guaranties or lease enhancements policies given
as additional security for any Investments (to the extent of the Trust Fund's interest therein);
(vfu) all amounts deposited or required to be deposited in the Custodial Accounts (to the extent
of the Trust Fund's interest therein), all amounts on deposit or required to be deposited in the
Distribution Account and the Delayed Draw Account, including ariy reinvestment income; [Ix)
the rights and remedies of the Trustee under each Assigned Agreement; (x) the rights and
remedies of the Trustee under the Investment Documents; (xi) the JPMorgan Guaranty; and (xii)
the proceeds of the foregoing (other than any amounts earned on deposits in any accounts, to the
extent such interest belongs to the related Obligor).
Trustee: U.S. Bank National Association, a national banking association organized under
the laws of the United States and any Persori succeedipg the Trustee hereunder, or if any
28
[TPW: NYU!GAL:7S6S66.19) II6OOI).(l()992 06I2SI2008 06:44 PM .
successor trustee or any co-trustee shall be appointed as herein provided, then such successor
trustee and such co-trustee, as the case may be.
Trustee Fee: An annual fee in the amount of $18,000 payable to the Trustee annually in
advance, beginning on the first Distribution Date in July 2008 pursuant to Section 6.12 and
thereafter annually on the anniversary of the Date.
UCC: The Uniform. Commercial Code as enacted in the relevant jurisdiction.
Unfunded Forward Commitments: With respect to the Investments as of any date, all
' unfunded forward commitments of the holder of such Investments to the related Obligors,
vvhethercontingentornon-contingenl,
USPAP: The, Uniform Standards of Professional Appraisal Practices.
Section 1.02 Calculations Respecting Investments.
Calculations required to be made pursuant to this Agreement with respect to any
Investment in the Trust Fund shall be made based upon current information as to the terms of the'
Investments and reports of payments received from the Obligor on such Investments and
payments to be made to the Master Servicer as supplied to the Master Servicer by the related
Seivicer. Unless otherwise directed by the Controlling Party in "Writing, amounts received on the
Investments shall be applied in accordance with the Investment Documents; however,
that no direction of the Controlling Party shall require the Master Servicer to violate the terms of
the Investment Documents.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of Investments.
(a) Concmrently with the execution and. delivery of this Agreement" the Depositor
. does h.ereby transfer, assign, set over, deposit with and otheIWise convey to the Trustee, without
recourse, subject to Sections 2.02 and 2.05, to have and to hold in trust, all the right, title and
interest of the Depositor in and to the Trust Fund. The Trustee declares that, subject to the review
provided for in Section 2.02, it has received and shall hold the trust Fund, as trustee, in trust., for
the benefit and. use of the Holders of the Certificates and for the' purposes and subject to the
terms and conditions set forth in this Agreement, and, concmrently with such receipt, has caused
to be executed, authenticated and delivered to or upon the order of the Depositor, in exchange for
the Trust Fund, Certificates in the authorized denominations evidencing the entire ownership of
the Trust Fund.
The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and
is not intended to result in the creation or assumption by the Trustee of any obligation of the
Depositor or any other Person in connection with the Investments or any other agreement or
instrument relating thereto except as specifically set forth hereiIL
29
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In connection with such transfer and assignment of the Investments, the Custodian acting
on the Trustee's behalf, will hold the documents or instnunents constituting the Investment File
with respect to each Invesbnent so transferred and assigned in accordance with the Custodial
Agreement.
On the Closing Date, the Custodian shall deliver to the Trustee, the Master Servicer, the
Controlling Party and the Depositor a certification ("Custodian Certification") substantially in
the form attached hereto as Exhibit F certifying that, pmsuant to the Custodial Agreement, such
Custodian is in possession of, and is holding on behalf of the (i) the original Note or
Participation Certificate, as applicable, endorsed as required pursUant to clause (i) of the
definition of Mortgage File or Mezzanine File, as applicable (unless any exceptions thereto have
been approved by the Controlling party) and (ii) an Investment File for each of the Investments
held by such Custodian; provided that the Custodian Certification delivered on the Closing Date
shall not be required to certify that the Custodian has verified that all of the documents required
to be contained in the Investment Files pmsuant to the definition thereof are contained therein.
Not later than 30 days following the Closing Date, the Custodian shall be required to deliver an
updated Custodian Certification certifying that the Custodian is in possession of, and is
on behalf of the Trustee, the docwnents comprising the applicable Invesbnent File for each of the
Invesbnents held by. such Custodian, subject to such exceptions as may be noted in an exception
schedule annexed thereto.
In addition, in connection with the assignment of any MERS Mortgage Loan, it is
understood that the Depositor will cause the MERS System to indicate that such Mortgage
Loans have been assigned by the Depositor to the Trustee ill accordance with this Agreement for
the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this' Agreement) in such computer files the
infonnation required by the tvmRS System to identify the series' of Certificates issued in
connection with such MERS Mortgage' Loans. It is further understood that the Depositor will
not, and the Master Servicer hereby agrees that it will not, alter the information referenced in this '
paragraph with respect to any Mortgage Loan during the term of this Agreement and until
such MERS Mortgage Loan is repurchased in with the terms of this Agreement.
(b) In connection with the Depositors assignment pursuant to Section above,
the Depositor delivers to and deposits with, or cause to be delivered and deposited with, the
Custodian on or before the Closing Date, the Note or Participation Certificate for each Mortgage
Loan and Companion Loan, and the Note or Participation Certificate with respect to each
Mezzanine Loan, so assigned, endorsed to the Trustee as specified in the definition of "Mortgage
Flle
n
or "Mezzanine File
n
, as applicable (or, alternatively, if the original executed Note or
Participation Certificate has been lost; a lost note afliditvit and indemnity from the Depositor in
form and substance reasonably acceptable to the Controlling Party, with a copy of such Note or
Participation Certificate as specified in the definition of "Mortgage File?> or "MezvIOine File'J, as
applicable) and the remainder of the Mortgage File "Mezzanine File", ,as applicable.
Notwithstanding the preceding sentence, if the' Depositor cannot so deliver, or cause to be
as to any Mortgage Loan, the original or a copy of any of the documents' and/or
instruments referred to in clauses .(ii), (iii), (v), (vii) and (ixXA) of the definition of "Mortgage
File", with evidence of recording or filing (if applicable, a.pd as the case may be) thereon, solely
because of a delay caused by the public recording or filing office where such document or
30
instrument has been delivered for recordation or filing, as the case may be, then (subject to the
obligation of such Depositor 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 Custodian, acting on behalf of the Trustee, (if such
document or instrument is not otherwise returned .to the Custodian) promptly upon the
Depositor's receipt thereof), so long as a copy of such document or instrument. certified by the
Depositor or title agent as being a copy of the document deposited for recording or filing and (in
. the case of such clause (ii) and (lit) accompanied by an Officer's Certificate of the Depositor or
a statement from the title agent to the effect that such original Mortgage or Assignment of
Leases, as applicable, has been sent to the appropriate public recording official for recordation,
has been delivered to the. CuStodian on or before 180 days following the Closing Date, the
delivery requirements of this 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 (for purposes of the initial requirement but shall not relieve the Depositor
of the responsibility to deliver the onginal or cettified copy with recording information); and if
the Depositor cannot or does not so deliver, or cause to be delivered, as to any Mortgage Loan,
the original of any of the documents and/or instruments referred to in clauses (iv) and (ix)(B) of
the defiiiition 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 Depositor to nonetheless
(I) from time ' to time make or cause to be made reasonably diligent efforts to obtain such
document or instrument (with such evidence) jfit is returned within a reasonable period after
the date when it was for recording and (2) deliver such document or instrument to the
Custodian, acting on behalf of the TIustee, appointed thereby (if such document or instrument is
not returned to the Trustee or such Custodian) promptly upon the Depositor's receipt
thereof), so long as a copy of such document or instrument. certified by the Depositor, a title
agent or a recording or filing agent as being a copy of the doaunent deposited for recording or
filing and accompanied by an Officer's Certificate of the Depositor or a statement from the title
agent that such document or instrument has been sent to the appropriate recording official
.for recordation, bas been delivered to the Custodian, acting on bebalf of the Trustee, on or before
180 days after the Closing Date, the delivery requirements of this Agreement shall be deemed to
have been satisfied as to such missing item, aruJ such missing item shall be deemed to have been
included in the related Mortgage File. In addition, with respect to each Mortgage Loan under
which any Collatel;'8l is. in the form of a tetter of credit as of the Closing Date, the Depositor .
agrees to cause to be prepared, executed and delivered to the issuer of such letter of credit
such notices, and acknowledgments as are required. under such letter of credit to
assign, without recourse, to the Trustee the Depositor's rights as the beneficiary thereof and
drawing party thereunder. Furthermore, with respect to each Mortgage Loan, if any, as to which
there exists a secured creditor impaired property insurance policy or pollution limited liability
environmental impainnent policy covering the Depositor will 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 Mortgage Loan).
(c) As soon as reasonably possible, and in any event within 45 days after the later of
(i) the Closing Date and (Ii) the date on which all recording infonnation necessary to complete
the subject document is received by the Custodian, acting on behalf of the Trustee, the Custodian
31
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shall complete (to the extent necessary), and shall submit for reC()rding or ming, 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
of Leases that has been recorded in the name of MERS or its designee) in favor of
the Trustee (for thebenefit of the Certificateholders) referred to in clause (iv) of the definition of
'Mortgage File" that has been received by the Trustee or the Custodian on its behalf and each
assignment of UCC Financing Statement (except with respect to any UCC F"mancing Statement
that bas been recorded in the name of MERS or its designee) in favor of the Trustee (for the
benefit of the Certificateholders) referred to in clause (ix)(B) of the definition of "Mortgage File"
that has been received by the Custodian, acting on behalf of the Trustee. The cost of such
recordings and filings shall be paid by the Depositor. Each such assignment shall reflect that it
should be retUrned by the public recording office to the Custodian, acting on behalf of the
Trustee, 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 ofUCC Financing
Statement shall reflect that the file copy thereof or an appropriate receipt therefor, as applicable,
should be returned to the Custodian, acting on behalf of the Trustee, 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
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 Custodian, the Custodian shall, if so requested, forward a copy thereof
to the Master Servicer. If any such document or inst:rwilent is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Custodian shall direct the Depositor
to prepare or cause to be prepared promptly, a substitute therefor or cure such defect; as the case
may be, and thereafter the Custodian shall, upon receipt thereof: cause same to be duly'
recorded Qr filed, as appropriate.
(d) Within 15 days after the Closing Date, the Depositor will deliver or cause to be
delivered to the applicable party under the related participation agreement, with respect to each
. Mezzanine Loan. evidenced by a Participation Certificate, the original Participation Certificate
endorsed or assigned to the Trustee, together with such other documentation, if any, as may be
required under 'such participation agreement, requesting that such party issue a new original
Participation in the name of ''U.S. Bank National Association, as Trustee for the
registered holders of the Maiden Lane Mortgage-Backed Securities Trust 2008-1".
The Depositor will deliver or cause to be delivered such replacement original Participation
Certificates to the Custodian on behalf of the Trustee. .
(e) All documents that are not required to be delivered to the Custodian shall
be held by the Master Servicer or the related Servicer in trust for the benefit of the Trustee and
the Certificateholders.
(f) The Depositor shall deliver to the Custodian replacement comfort letters, or
documentation evidencing the related franchisor's (or similar person's) consent to the transfer to
the Trustee of the existing comfort letters, for the Mortgage Loans secured by hospitality
properties and for which the existing comfort letters are not assignable to (or for qte benefit of)
. the Trustee without the consent of the related franchisor (or similar person). If the Depositor does
32
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not deliver the documentation required by the preceding sentence with respect to any applicable
Mortgage Loan on or hefore 270 days following the Closing Date (unless such Mortgage Loan is
sold, satisfied or otherwise liquidated on or before such date), thc Dcpositor shall deposit into the
Distribution Account an amount equal to 3% of the product of the then outstanding principal
balance of any such Mortgage Loan and the related Purchase Price Percentage, or, to the extent
that any such Mortgage Loan is secured by multiple Mortgaged Properties, 3% oftlle portion of
the product of the then outstanding principal balance of such Mortgage Loan allocable (in
accordance with the applicable Investment Documents as determined by the applicable Servicer)
to the Mortgaged Properties for which such documentation has not been obtained and the related
Purchase Price Percentage. Schedule D annexed hereto contains a list of the Mortgaged
Properties that the Depositor has initially identified as potentially requiring such documentation;
provided that such list is for informational purposes only and shall not be determinative of the
Mortgage Loans for which such documentation shall be required; provided, further, that the
Depositor may, from time to time, prior to the 270,h day after the Closing Date, provide to the
Custodian (with a copy to the Controlling Party) a revised Schedule D on which the Custodian
may rely for purposes of the exception schedule annexed to any Custodian Certification requircd
pursuant to Section 2.01(a).
(g) With respect to the Investments identified as Project Matrix Resurrection (HPT
17, HPT 17 Mezz A, HPT 17 Mezz Band HPT 17 Mezz C) and Extended Stay Hotels (Mezz A
through Mezz H, Mezz I-A and Mezz I-D) on the Investment Schedule, the Depositor shall use
commercially reasonable efforts to cause the related Obligors to issue individual notes to each of
the parties identified.as a "Co-Lender" in the related Investment Documents for each such
Investment and to obtain amendments to the applicable Investment Documents reflecting the
of the single note for each such Investment with separate individual notes payable to
each individual "Co-Lender" together with correlative amendments to the Investment Documents
to clarifY that the "Co-Lenders", together wi"th their respective successors and assigns, may by
agreement amongst themselves and without the further consent of the Obligor, determine how to
exercise the rights and remedies accorded the "Lender" under the Investment Documents. If the
Depositor has not delivered to the Custodian an individual note for any such Investment payable
or endorsed to the Trustcc (or evidence that. such note is held by a custodian on behalf of the
Trustee), together withcopies of the related amendments, on or before December 26, 2008; the
Depositor shall repurchase such Investment in accordance with the prOVisions of Section
2.05(a)(iii). The Depositor shall pay the reasonable attorney's fees incurred by the Controlling
Party in cOtmection with the issuance of any such replacement notes and the related amendments.
The Depositor's obligation to repurchase any such Investment shall not be affected by any
modification, amendment, waiver, consent, approval or other action taken by the Master
Servicer, the Trustee, the Special Servicer or the Controlling Party, so long as the Depositor has
been given five Business Days (or such lesser period as it may agree orally, in writing or by
email with respect to any specific action) prior notice and has not objected in writing to such
modification, amendment, waiver. consent, approval or other action. It being understood that the
Depositor's failure to provide written objection prior to the end of such five Business Day period
shall be deemed to constitute its consenl
Until such time as (i) such amendments have been consummated and ilie Depositor has
obtained the applicable replacement notes or (ii) such Investments have been repurchased, the
33
[TI'W: 0612.11200806-:.44 PM
Deoositor shall remain as a named holder of the related notes, and as a "CoLender" under the
other Investment Documents, in trust for and solely on behalf of the Trustee. During such period,
the Depositor shan act at the direction of the Controlling Party in taking any action or refraining
from taking any action in itS capacity as the named holder of, and "Co Lender" under, such
Investments; provided that such direction is not in contravention of this Agreement, .the
Investment Documents or applicable law.
Section 2.02 Acceptance of Trust Fund by Trustee; Review of Documentation for Trust
Fund.
(a) Subject to the review thereof by the Custodian as provided herein and in the
Custodial Agreement, the Trustee, by execution and delivery hereof, acknowledges receipt by
the Custodian on behalf of the Trust Fund of the Investment Files pertaining to the Investments
listed on Schedules A through C attached hereto and the Trustee hereby confirms its receipt of
the Custodian Certification required pursuant to Section
(b) With respect to the Investments, in the event there exist exceptions noted on the
Custodian Certification, not later than 75 Days after the Closing Date, the Custodian shall deliver
to the Trustee, the Master Servicer, the ContrOUuig Party and the Depositor an updated
Custodian Certification with any applicable exceptions noted thereon. 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 all recordation/filing has been completed, and (ii) the date on which all the
affected Investments are liquidated or removed from the Trust Fund, the Custodian shall deliver
to the 'Trustee, the Depositor, the Controlling Party and the MaSter Servicer an update to the
exception report annexed to the Custodian Certification, which update shall report any remaining
outstanding exceptions with respect to each Investment
(c) Nothing in this Agreement shall be construed to constitute an asswnption by the
Trust Fund, the Trustee, the Custodian, the Master Servicer or the Certificatebolders of any
unsatisfied duty, or other liability on any Investment or to any Obligor.
(d) Upon execution of this Agreement, the Depositor hereby delivers to the Trustee
and the Trustee acknowledges receipt of the Acknowledgements, together with copies of the
related Assigned Agreements.
(e) The Trustee is hereby authorized and directed to execute and deliver as Trustee,
on behalf of the Trust Fund and in the form presented to it, the Custodial Agreement, the
Servicing Rights Purchase Agreement, each Acknowledgement and the JPMorgan Guaranty. In
so doing, it is hereby expressly acknowledged that the Trustee is not responsible for the terms or .
contents of such agreements.
Section 2.03 Representations and Wananties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for the benefit of the
Certificateholders, as of the Closing Date or such other date as is specified, that:
34
(Il'W': NYLEGAL:7,6S66.19) 860()().()0992 06f2S/2008 06;44 PM
(i) the Depositor (i) is duly organized and, validly existing under the laws of
its jurisdiction of organization or incorporation, (ii) is in good standing under such laws
and (iii) has full power and authority to execute, deliver and perfonn its obligations under
this Agreement;,
(ii) the Depositor's execution, delivery, and perfonnance of this
have not resulted, and will not result, in a breach of any provision of (i) the Depositor's
organizational documents, (ii) any statute, Jaw, writ, order, rule or regulation of any
governmental authority applicable to the Depositor, (iii) any injunction, decree
or detennination applicable to the Depositor or (iv) any contract, indenture, mortgage,
loan agreement, note, lease or other instrument by which the Depositor may be bound or
to which any of the assets of the Depositor are subject;
(ill) (i) this Agreement (A) has been duly and validly authorized, executed, and
delivered by the Depositor, and (B) constitutes the legal, valid, and binding obligation of
the Depositor, enforceable against the Depositor in accordance with its tenns, except that
such enforceability may be limited by bankruptcy, insolvency, or other similar laws of
general applicability ,affecting the enforcement of creditors' rights generally and by the
court's discretion in relation to equitable remedies; and (ii) no notice to, registration with,
consent or approval ot: or any other action by, any relevant governmental authority or
any other Person is or will be required for the Depositor to execute, deliver, and perform
its obligations under this Agreement;
(iv) immediately prior to the assignment of the Investment to the Trustee, the
Depositor had good and marlcetable title thereto, and has full right to transfer and sell
each-such Investment to the Trustee free and clear of any Adverse Claim, and has full
right and authority to transfer and sell each such Investment pursuant to this Agreement;
(v) as of the date hereof, after giving effect to the requirements of Section
2.01, the Depositor will have vested in the Trustee all right, title and interest of the
DepOsitor in, to and under the Investments and the Pre-Cut Off Date Deposit assigned by
the Depositor hereunder :free and clear of any Adverse Claim; and '
(vi) no Scheduled Payment under any Investment was 30 days or more past
due as of March 14,2008.
The foregoing representations made in this Section 2.03 shall survive execution and
delivery of this Agreement and shall not be waived by any party hereto without the consent of
the Controlling Party.
Section 2.04 Representations and Warranties of the Trustee.
(a) The T1'\lStee hereby represents and warrants to each of the other parties hereto and
for the benefit of the Certificateholders and the Controlling Party as of the Closing Date:
(i) it is validly existiDg and in good standing under the laws of the United
States of America as a national banking association, and as Trustee has full power and
authority to transact ,any and all business contemplated by this Agreement and to execute,
35
{TPW: NYLEGAL:7S6S66.19] 86000-00992 06flSI2008 06:44 PM
deliver and comply with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all necessary corporate
action on the part of the Trustee;
(ii) the execution and delivery of this Agreement by the Trustee and its
performance and compliance with the terms of this Agreement will not (A) violate the
Trustee's charter or bylaws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) 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 contract, agreement or other instrwnent to which the Trustee is a party or
by which it is bound or to which any of its assets are subject, which violation, default Or
breach woUld materially and adversely affect the Trustee's ability to perform its
obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization, execution and
delivery hereof by the other respective parties hereto, a legal, valid and binding
obligation of the Trustee, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such' enforcement is considered in a
.proceeding in equity or at law); .
(iv) the Trustee is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or governmental agency
to the extent tlult any such default would materially and adversely affect its Performance
hereunder;
(v) the Trustee is not a party to or bound by any a ~ r e e m e n t or instnunent or
subject to any charter provision, bylaw or any other corporate restriction or any
judgment, order, writ; injunction, decree, law or regulation that may materially and
adversely affect its ability as Trustee to perform its obligations under this Agreement or
that requires the consent of any third person to the execution 'of this Agreement or the
performance by the Trustee of its obligations under this Agreement;
(vi) no litigation is pending against the Trustee or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit its entering into this
Agreement or performing its obligations under this Agreement;
(vii) no consent, approval, authorization or order of any court or governmental
agency or body or any other Person is required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders (if any) as have been obtained; and
(viii) the consummation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Trustee. .
36
[1PW: NYLEOAL"756S66.19) 860()0.00992 06I2SJ2008 06:44 PM
The foregoing representations made in this Section 2.04 shall swvive execution and
delivery of this Agreement and shall not be waived by any party hereto without the consent of
the Controlling Party.
Section 2.05 Discovery of Breach; Repurchase of Investmcnts.
(a) (i) Upon discovery by the Depositor or receipt of written notice of any materially
defective document iIi, or, folloWing the date of delivery to the Trustee of the Custodian
Certification a document is missing from, an Investment File, or of any breach by the Depositor
of representation or warranty set forth in Section 2.03(a)(iv) or (v) of this Agreement in
respect of any Investment, in either case which materially adveISely affects the value of that
Investment or the interest therein of the Certificateholders (a "Defective Investment',) (the
Depositor hereby agreeing to give written notice thereofto the Trustee, the Master Servicer and
the Controlling Party), the Depositor shall cure or cause the cure of such defect or breach within
180 days from the earlier of this discovery or its receipt of notice of such breach and failing such
cure within such time, shall repurchase such Defective Investment at the Purchase Price.
(ii) Upon discovery by the Depositor or of written notice from the Master
Servicer, the Trustee or the Controlling Party of any breach by the Depositor ' of the
representation and warranty set forth in Section 2.03(a)(vi) of this Agreement in respect of any
Investment (the Depositor hereby. agreeing to give written notice thereof to the Trustee, the
Master Servicer and the Controlling Party), the Depositor shall repurchase such Investment at the
Purchase Price within 30' days of such discovery or receipt of notice.
(iii) If required pursuant to Section 2.01(g), the Depositor shall repurchase the
affected. Investinents at the Purchase Price within 30 days following December 26, 2008.
(b) With respect to Section 2.05(a)(i), if the Trustee receives written notice that the
Depositor has not delivered such missing document or cured such defect or breach, as applicable,
in all material respects during such period, the Trustee, the Master Servicer or the Special
Servicer, on behalf of the Trust Fund, upon and PUISuant to direction of the Controlling Party,
shall enforce the obligations of the Depositor under this Agreement, and cause the Depositor to
repurchase that Investment from the Trust Fund at the Purchase Price on or prior to the
expiration of such specified period; provided, that, in conneCtion with any such breach
that could not reasonably have been' cured within such specified period, if the Depositor shall
have commenced to cure such breach within such specified period, the Depositor shall be
permitted to proceed thereafter diligently and expeditiously to cure such Defective Investment
within such additional time as is reasonably detennined by the Controlling Party, to cure such
missing document, defect or breach. In connection with any actions required to be taken
pursuant to this Section 2.05(b), the Trustee, Master Servicer or Special Servicer, as the case
may be, be entitled. to consult with and receive instruction from the Controlling Party to
deteon.ine whether (a) any document is materially defective or any missing document or breach
of lepresentation and warranty materially adversely !iffects the value of the Investment or the
interest therein of the Certificateholders, as applicable. The obligation of the Trustee, Master
Servicer or Special Scrvicer, as the case may be, to take enforcement or other action pursuant to
this Section i.05(b) shall be subject to the terms of this Agreement (including any rights
hereunder to be indemnified and reimbursed. for associated expense).
37
(11"W; NYUlGAL:7S6S66.19j 06f2SI2008 06:44 PM
(c) The Purchase Price for any repurchased Investment shall be deposited in the
Distribution Account, and the Custodian, on behalf of the Trustee, or its designee, upOn receipt
of written certification from the Master Servicer of such deposit, shall release to the Depositor
the related Investment File and shall execute and deliver such instruments of transfer or
assignment, in eaCh case without recourse, representation or warranties, as either party shall
furnisb to it and as sJIall be necessary to vest in such party any Investment released pursuant
hereto and neither the Trustee, its designee, nor any other party hereunder includirig the
Controlling Party and the Operating Adviser, shall have any further responsibility with regard to
such Investment File (it being understood that the Trustee shall have no responsibility for
determining the sufficiency of such assignment for its intended pwpose). If pursuant to the
foregoing provisions the Depositor repurchases a Mortgage Loan that is a MERS Mortgage
Loan, the Master Servicer shall cause MERS to designate on the MERS System the Depositor
as the beneficial holder of such Mortgage Loan.
(d) Except as provided in this Section 2.05, the sale, assignment and conveyance of
ihe Investments to the Trustee is without recourse to the Depositor. The Depositor makes no
representation or warranty, express or implied, and assumes no responsibility, with respect to the
genuineness, authorization.; execution, delivery, validity, legality, value, sufficiency, perfection,
priority, enforceability or collectability of any of the Investments or the Investment Documents.
The Depositor assumes no responsibility for (i) any representation or warranty made by, or the
accuracy, completeness, correctness or sufficiency of any information (or the validity,
completeness or adequate disclosure of assumptions underlying any estimates, forecasts or
projections contained in such infonnation) provided directly or indirectly by, any Obligor under
any such Investmept 'or any other Person, (ii) the perfonnance or observance by the applicabJe
Obligor of any of the provisions of the applicable Investment Documents (whether on, before or
after the Closing Date), (iii) the financial condition of any such Obligor or any other Person or
(iv) (except as otherwise expressly provided herein) any other matter whatsoever relating to any
such Obligor, any other Person or the Investments.
Section 2.06 Grant Clause.
(a) It is intended that the conveyance of the Depositor's right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall constitute, and shall be
construed as, a sale of such property and not a grant of a security interest to secure a loan.
However, if such conveyance is deemed to be in respect of a loan, it is intended that: (1) tbe
rights and obligations of the parties shall be established pursuant to the tenns of this Agreement;
(2) the Depositor hereby grants to the Trustee for the benefit of the Holders of the Certificates a
first priority security interest in all of the Depositor's right, title and interest in, to and under,
whether now Qwned or hereafter acquired, the Trust Fund and all proceeds of any and all
property constituting ~ e Tx:ust Fund to secure payment of the Certificates; and (3) this
Agreement shal1.constitute a security agreement under applicable law.
(b) The Depositor s h a l ~ to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a
secwity interest in the Investments and the other property described above, such security interest
would be deemed to be a perfected security interest of first priority under applicable law and will
38
(TI'W: NYLEOAL:7!i6S66.19] Il6OOO.OO992 ocn!il2OO8 06:44 PM
be maintained as such throughout the term of this Agreement. The Depositor will, at its own
expense, make all initial filings on or about the Closing Date and shall forward a copy of such
filing or filings to the Trustee and the Master Servicer. Without limiting the generality of the
foregoing, lhe Depositor shall prepare and cause to be filed, at the expense of the Depositor, all
filings necessary to maintain the effectiveness of any original filings necessary under the relevant
UCC to perfect the Trustee's security interest in or lien on the Investments, including without
limitation (x) continuation statements, and (y) such other statements as may be occasioned by
(1) any change of name of the Depositor or the Trustee, (2) any change of location of the place of
business or the chief executive office of the Depositor, (3) any transfer of any interest of the
Depositor in any Investment or (4) any change under the relevant UCC or other applicable laws.
The Depositor shall not organize under the law of any jurisdiction other than the State under
which each is organized as of the Closing Date (whether changing its jurisdiction of organization
or organizing it under an additional jurisdiction) without giving 30 days prior written notice of
such action to its immediate and intennediate transferee, including the Trustee. If the Depositor
proposes' to change its jurisdiction of organization shall prepare and file in the appropriate filing
office any financing statements or other statements necessary to continue the perfection of the
interests of its immediate transferees, including the Trustee, in the Investments. In connection
with the transactions contemplated by this Agreement, the Depositor authorizes its immediate or
mediate transferee to file in any filing office any initial financing statements, any amendments to
financing statements, any continuation statements, or any other statements or filings described in
this Section 2.06(b), it being understood that such immediate or mediate transferees are under no
obligation to make such filings.
Section 2.07 Initial Deposits by Depositor; Finance Charge Amounts .
.(a) On the Closing Date, the Depositor shall deposit the Pre-Cut-off Date Deposit
into the Distribution Account,
(b) Within 30 days after the Closing Date, the Depositor shall remit or cause to be
remitted to the Mast,er Servicer all amounts received in respect of the InvestmentS during the
period from and including June 1,2008 through and including June 25,2008 (the "June Deposit
Amount"). Promptly following the Closing Date, each of the Master Servicer, the Depositor and
the Controlling Party agree to cooperate promptly to determine the amount of the June Dep9sit
Amount and to resolve any'discrepancies and arrive at a final reconciliation of the June Deposit
Amount and the related Finance Charge Amount and any necessaty adjustments to the Pre-Cut-
off Date Deposit or the initial Finance Charge Amount prior to the 30
th
.day following the
Closing Date. As part of such reconciliation, the Depositor and Controlling Party will inform the
Master Servicer of the amount of the FinanCe Charge Amount applicable to the June Deposit
Amount, and the Master Servicer shall be entitled to conclusively rely on such amount without
verification by itself or any other Person for purposes of the payment of such Finance Charge
Amount to be made Pursuant to paragraph ( ~ ) below and any other purpose under this Agreement
or otherwise. Upon agreement by such parties as to the amount of the June Deposit Amount, the
Depositor will promptly deposit such amount into the Distribution Account, and the Master
Servicer will distribute the June Deposit Amount in accordance with this Agreement on the next
Business Day. The Master Servicer shall be entitled to one Business D a y ' ~ worth of earnings on
such funds as additional servicer compensation.
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(c) On the Distribution Date on which the Pre-Cut-off Date Deposit is distributed to
the Certificateholders, the Master Servicer shall pay, from the amoWlt deposited in the
Distribution AccoWlt as the Pre-Cut-off Date Deposit, the Finance Charge Amount related to the
period from March 14, 2008 through and including May 31, 2008 to the Depositor by wire
transfer from amoWlts on deposit in the Distribution Account (including the Pre-Cut-off Date
Deposit) in accordance with Section 4.0 1 (d). On the Distribution Date on which the June Deposit
Amount is distributed to the Certificateholders, the Master Servicer shall pay, from the amount
deposited in the Distribution Account as the June Deposit Amount, the Finance Charge Amount
related to the period from JWle 1,2008 through and including June 25,2008 to the Depositor by
wire transfer from amoWlts on deposit in the Distribution Account (including the June Deposit
Amount) in accordance with Section 4.01(d). In the event that such parties determine that any
additional amoWlts are due in respect of the Pre-Cut-off Date Deposit as a resuJ.t of such
reconciliation, the Depositor shall not later than five Business Days after such amount is
detennined deposit such additional amount. into the Distribution AccoWlt, and the Master
Servicer shall distribute such amount in accQrdance with this Agreement on the next Business
Day. In the event that such parties detennine that any additional amoWlts are due in respect of
the initial Finance Charge Amount as a result of such reconciliation, the Master Servicer shall
pay such additional amount to the Depositor on the first .Business Day following the. date on
which the Depositor and the Controlling Party notify the Master Servicer of such determination
and on which sufficient are available in the Distribution AccoWlt to make such payment.
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates.
(a) The Certificates shall be issuable as certificated securities in registered form only
and shall be securioes governed by Article 8 of the New York Uniform Commercial Code. The
Certificates shall be issued in definitive, fully registered form in a minimum Percentage Interest
of 1%.
(b) The Certificates shall be executed by manual or facsimile signature on behalf of
the Trustee by an authorized officer of the Trustee on its behalf. Each Certificate shal.I, on
original issue, be authenticated by the Authenticating Agent upon the order of the Depositor
upon receipt by the Custodian, on behalf of the Trustee, of the Investment Files described in.
Section 2.01. No Certificate shall be entitled to any Wlder this Agreement, or be valid for
any pwpose, unless there appears on such Certificate a certificate of authentication substantially
in the form provided. for herein, exe,cuted by an authorized officer of the Authenticating Agent,
by' manual signature, and such certification upon any Certificate shall be conclusive evidence,
. and the only evidence, that such Certificate bas been duly authenticated and delivered hereunder.
All Certificates shall be dated the date of their authentication. At any time and from time to time
der the execution and delivery of this Agreement, the Depositor or any Certificateholder 'may
deliver Certificates executed by the Trustee to the Authenticating Agent for authentication and
the Authenticating Agent shall authenticate and deliver such Certificates as in this Agreement
provided and not otherwise.
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Section 3.02 Registration.
The Trustee is hereby appointed, and the Trustee hereby accepts its appointment as initial
Certificate Registrar in respect of the Certificates and shall maintain books for the registration
and for the transfer of Certificates (the "Certificate Register"). A registration book shall be
maintained for the Certificates. The Certificate Registrar may resign or be discharged or
removed and a new successor may be appointed in accordance with the procedures and
requirements set forth iQ Sections 6.06 and 6.07 hereof with respect to the resignation, discharge
or removal of the Trustee and the appoinbnent of a successor Trustee. The Certificate Registrar
may a p p o i n ~ by a written instrument delivered to the Holders and the Master Servicer, any bank
. or trust company to act as co-registrar under such conditions as the Certificate Registrar may
prescribe; provided, however, that the Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appoinbnent.
Section 3.03 Transfer and Exchange of Certificates.
(a) A Certificate may be transferred by the Holder thereof only upon presentation and
surrender of such Certificate at the office of the Certificate Registrar duly endorsed or
accompanied by an assignment duly executed by such Holder or his duly authorized attorney in
such form as shall be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence. the Trustee shall execute, and. the
Authenticating Agent shall authenticate and deliver to the transferee. one or more new
Certificates and evidencing, in the aggregate, the same aggregate Percentage Interest as the
Certificate being transferred. No service charge shall be made to a Certificateholder for any
registmtion of transfer of Certificates. but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in connection with any
registration of transfer of Certificates. .
(b) A Certificate may be exchanged by 'the Holder thereof fot any number of new
certificates, representing in the aggregate the same Percentage Interest as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the office of the Certificate
Registrar duly endorsed or accompanied by a written instrument of transfer duly executed by
such Holder or his duly authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the same obligations,
and will be entitled .t(} the ~ e rightS and 'privileges, as the Gertificates surrendered. No. service
charge shall be made to a Certificateholder for any exchange of CertifiC?Btes, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or governmental. charge that
may be imposed in connection with any exchange of Certificates. Whenever any Certificates are
so surrendered for ' exchange, ' the Trustee shall execute, and the Authenticating Agent shall'
authenticate, date and deli'Ver the Certificates which the Certificateholder making the exchange is
entitled to receive.
(c) By acceptance of a Certificate, whether upon original issuance or subsequent
transfer, each Holder of a Certificate acknowledges the restrictions on the transfer of such
Certificate set forth thereon and agrees that it will transfer such Certificate only as provided
herein.
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The following restrictions shall apply with respect to the transfer and registration of
transfer of a Certificate:
(i) The. Certificate Registrar shall register the transfer of a Certificate if the
requested transfer is (x) to the Depositor or an affiliate (as defined in Rule 405 under the
Act) of the Depositor, (y) being made to a "qualified institutional buyer" (a "Om") as
defined in Rule 144A under the Act by a transferor that bas provided the Certificate
Registrar with a certificate in the form of Exhibit C hereto or (z) the initial transfer to
Maiden Lane, LLC; and
(ii) The Certificate Registrar shall register the transfer. of a Certificate if the
requested transfer is being made to an "accredited investor" under Rule 501(a)(1), (2), (3)
or (7) under the Secwities Act, or to any Person all of the equity owners in which are
such accredited investors, by a transferor who furnishes to the Certificate Registrar a
letter of the transferee substantially in the fOIm ofExliibit D hereto.
(d) No transfer of a Certificate shall be made to any Person or shall be effective
unless the Certificate Registrar has received (A) a certificate in the form of
Exhibit E hereto from such transferee or (B) an Opinion of Counsel satisfactory to the Trustee
and the Certificate Registrar to the effect that the purchase and holding of such a Certificate will
not constitute or result in any nonexempt prohibited transactions under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate Registrar, the Trustee, the Master
Servicer,' any Servicer or the Depositor to any obligation in addition to those undertaken in the
Agreement; provided, however, that the Certificate Registrar will not require such certificate or
opinion in the event that, as a result of a change of law or otherwise, counsel satisfactory to the
Certificate Registrar has rendered an opinion to the effect that the purchase and holding of a
Certificate by a Plan or a Person that is purchasing or holding such a Certificate with the assets
of a Plan will not constitute or result in a prohibited transaction .under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate Registrar, the Trustee, the Master
Servicer, any Servicer or the Depositor to any obligation in addition those undertaken in this
Agreement The preparation and delivery of the certificate and opinions referred to above shall
not be an expense of the Trust Fund, the CertifiCate Registrar, the Trustee, the Master Servicer,
the Depositor or the Controlling Party.
Notwithstanding the foregoing, no opinion or certificate shall be required for the initia)
transfer of the Certificates to Maiden Lane, LLC. The Certificate Registrar shall be under no
liability to any Person for any registration of transfer of any Certificate that is in fact permitted
by this Section 3.03( d) and neither the Trustee nor the Paying Agent shall have any Uability for
makjng any payments due on such Certificate to the Holder thereof or taking any other action
to such Holder under the provisions of this Agreement so long as the transfer was
registered by the Certificate Registrar in accordance with the foregoing requirements. The
Paying Agent and Trustee shall each be entitled, but not obligated, to recover from any Holder of
any Certificate that Was in fact a Plan or a Person acting on behalf of a Plan any payments made
on such Certificate at and after either such time. Any such payments so recovered by the Trustee
or Paying Agent shall be paid and delivered by the Paying Agent to the last preceding Holder of
such Certificate that is not such a Plan or Person acting on behalf of a Plan.
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(e) As a condition of the registration of transfer or exchange of any Certificate, the
Certificate Registrar may require the certified taxpayer identification number of the owner of the
Certificate and the payment of a sum sufficient to cover any tax or other governmental charge
imposed in connection therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax or charge may be
applicable. No service charge shall be made to the Certificateholder for any registration, transfer
or exchange of a Certificate.
(f) Each Holder of a Certificate or an interest therein, by such Holder's acceptance
thereof, shall be deemed for all purposes to have consented to the provisions of this section.
Section 3.04 Cancellation of Certificates.
Any Certificate surrendered for registration of transfer or exchange shall. be cancelled and
retained in accordance with normal retention policies with respect to cancelled certificates
maintained by the Certificate Registrar.
Section 3.05 Replacement of Certificates.
If (i) any Certificate is mutilated and is surrendered to the Certificate Registrar or (ii) the
Trustee or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate, and there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee or the Certificate Registrar that such destroyed, lost or stolen
Certificate has been acquired by a protected purchaser. the Trustee shall execute and the
Authenticating Agent shall authenticate and in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen, Certificate, a new Certificate of like tenor and Percentage
Interest. Upon the issuance of any new Certificate under this Section 3.05 . the Certificate
Registrar may require the payment' of a sum. sufficient to cover any tax or other governmental
, charge 1hat may be imposed in relation thereto and any other expenses (mcluding the fees and
expenses of the Trustee or the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 3.05 shall constitute complete and indefeasible
of ownership in the applicable Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
If after. the delivery of such new a protected purchaser of the original
Certificate in lieu of which such new Certificate was issued presents for payment such original
Certificate, the Certificate Registrar and the Trustee or any agent shall be entitled to recover such
new Certificate from the Person to whom it was delivered or any Person taking except
a purchaser. and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expenses incurred by the Certificate Registrar,
the Trustee or any agent in connection therewith.
. Section 3.06 Persons Deemed Owners.
The Depositor, the Master Servicer, the Trustee, the Certificate Registrar, the Paying
Agent and any agent of any of them shall treat the Person in whose name any Certificate is
registered upon the books of the Certificate Registrar as the owner of such Certificate for the
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pwpose of receiving distributions pursuant to Sections 5.01 and 5.02 and for all other purposes
whatsoever, and none of the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, the Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
Section 3.07 Appointment of Paying Agent.
With the consent of the Controlling Party, the Trustee may appoint a Paying Agent
(which may be the Trustee) for the purpose of making distributions to the Certificateholders
hereunder. The Master Servicer shall be the initial Paying Agenl The Trustee shall cause any
Paying Agent, other than the Master Servicer which so agrees by its execution hereof: to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all swns held by it for the payment to the Certificateholders in
an Eligible Account (which shall be the Distribution Account) in trust for the benefit of the
Certificateholders entitled thereto until such swns shall be paid to the Certificateholdeci. Any
Paying Agent shall be either a bank or trust company or otherwise authorized under law to
exercise corporate trust powers.
ARTICLElV
SERVICING AND ADMINISTRATION OF TIffi TRUST FUND
Section 4.01 Custodial Accounts; Distribution Account.
(a) The Master Servicer shall enforce the obligations of each Primary Servicer to
establishand maintain one or more Custodial Accounts, as provided in the related Assigned
Agreement, into which all Scheduled Payments and other collections and proceeds with respect
to the related Mortgage Loans and Serviced Mezzanine Loans, net of any deductions or
reimbursements permitted under the related ASSigned Agreement, shall be deposited. The
Master Servicer shall cause the Servicers and any Special Servicer to remit to the Master
Servicer for deposit into the Distribution Account, all Scheduled Payments, Principal
Prepayments, Prepayment Premiwns, Default Interest, REO Proceeds and other collections and
proceeds of the Investments.
(b) "The Master Servicer, as raying Agent on behalf of the Trustee, shall establish and
maintain an Eligible AccoUnt entitled "Bank of America, National Association, as Master
Se:rvicer, in trust for the registered holders of Maiden Lane Commercial Mortgage Pass-Through
Certificates, Series 2008-1, Distribution Account". The Master Servicer shall promptly deposit or
cause to be deposited into the Distribution Account the following amounts:
(i) All amounts received from the Servicers with respect to the Investments;
(ii) The "Purchase P r i c e ~ ' payable by the.Master Servicer under the Servicing
Rights Purchase Agreement and any amounts required to be deposited by the Master
Servicer with respect to the Investments pursuant to this Agreement, including any losses
on Permitted Investments as required by Section 4.01(e) and any ancillary income not
retained by or required to be paid to a Servicer;
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(iii) all amounts received from the Depositor in accordance with Section
2.01 (f) or Section 2.07 or in cOlUlection with the repurchase of any Investments pursuant
to Section 2.05 and the proceeds from the sale of any Investment pursuant to this
Agreement, including Section 8.04;
(iv) any amounts received by the Trustee under the JPMorgan Guaranty; and
(v) any other amounts so required to be deposited in the Distribution Account
pursuant to this Agreement.
(c) In the event the Master Servicer or a Servicer has remitted in error to the
Distribution Account any amount not required to be remitted thereto, the Master Secvicer may
withdraw such amount from the Distribution Account for repayment to itself or the Servicer, as
applicable, by delivery of an Oflicer's Certificate to the Controlling Party which describes the
amount deposited in error.
(d) The Master Servicer may, from time to lime, make withdrawals from the
Distribution Account for any of the following purposes (the order set forth below not constituting
an order of priority for such withdrawals):
(i) to remit the Available Distribution Amount to the Paying Agent for
distribution to the Certificateholders on each Distribution Date pursuant to Section 5.02;
(ii) to reimburse the Trustee, itself and any Servicer, as applicable, in that
order, for unreimbursed Servicing Advances made by such Person (in each case, with its
own funds) with respect to the Investments. The Master Servicer shall reimburse itself,
the Trustee and any Primary Servicer of a Mortgage Loan or Serviced Mezzanine Loan
for unreimbursed Servicing Advances from any amounts available in the Distribution
Account without regard to the source of such funds;
(iii) to pay any Servicer any earned and unpaid Servicing Fees due under the
applicable Investment Docwnents;
(iv) to pay the applicable Special Servicer (or. if applicable. any predecessor
thereto) earned and unpaid Servicing Fees. Workout Fees and Liquidation Fees to
which it is entitled in respect of each Specially Serviced Loan pwsuant to, and from the
sources contemplated by. Section 4.08;
(v) to pay the Trustee, the applicable SpeCial Setvicer, itself or any Servicer
any unpaid Advance Interest accrued on Servicing Advances made by such Person with
respect to the Investments as required under the applicable Investment Documents;
(vi) to pay itself: the Primary Servicer and the Controlling Party. as applicable,
any amounts due such Person under Section 9.03(b);
(vii) to pay itself. the applicable Special Servicer. the Controlling Party. the
Operating Adviser, the Trustee, any co-trustee, any Certificateholder or the Depositor, as
the case may be, any amount that is specifically required to be paid to such Person at the
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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 4.0 I (d);
(viii) with respect to any Companion Loan or Mezzanine Loan, with the consent
of the Controlling Party, to pay, out of any amounts then on deposit in such Distribution
Account, to the Servicer and/or any other Person, any amount payable or reimbursable to
such party by the holder of such Companion Loan or Mezzanine Loan pursuant to the
terms of the Investment Documents;
(ix) to pay itself any net earnings on Pennitted Investments in accordance with
Section 4.01 (e);
(x) subject to the right of the Controlling Party to revoke or modify this clause
at any time upon written notice to the Master Servicer and the Trustee, to retain in a sub-
ledger of the Distribution AccoWlt (the "Expense Reserve Account''), an amount equal to
any amounts payable by the Master Servicer pursuant to any of the clauses of this Section
4.0 I (d) for which it has received written notice or has been instructed by the Controlling
Party will b.e required to be paid over the following 30 days; provided, however, that the
Master SerVicer shall not retain more than $500,000 in the Expense Reserve Account at
anyone . time without the consent of the Controlling Party; provided further that any
earnings and gains from Pennitted Investments in the Expense Reserve Account shall be
included in the Available Distribution AmOWlt and shall not be retained by the Master
"Servicer;
(xi) to pay adjustment due under Section I (b) of the Servicing Rights
- Purchase" Agreement or any Make-Whole Payment owed to it pursuant to Section 5 of the
Servicing Rights Purehase Agreement;
, ..
(xii) to pay the applicable Finance Charge Amount in respect of the Pre-Cut-off
Date Deposit and the June Deposit in accordance with Section 2.07(c) of this
Agreement;
(xiii) to. withdraw any amount and pay to the Person entitled thereto any amount
deposited in such Distribution Account in error; and
(xiv) to clear and tenninate such Distribution Account at the termination of this
Agreement pursuant to Section 7.02.
(e) As compensation for its services hereunder, the Master Servicer shall be entitled,
on the Business Day immediately prior to each Distribution Date, to direct the depository
. institution or trust company in which the Distribution Account is maintained to invest the funds
held therein in one or more Permitted Investments; provided, however. that such funds shall be
either (i) immediately available or (ii) available in accordance with a schedule which will permit
the Master Servicer to meet its payment" obligations hereunder. The Master Servicer shall be
entitled to all income and gain realized from the investment of funds deposited in
. the Distribution Account on the Business Day immediately prior to each Distribution Date, it
being understood, however, that (i) the Master Servicer will not be entitled to any earnings on the
Pre-Cut-off Date Deposit even if the Pre-Cut-off Date Deposit remains in the Distribution
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Account until the next Business Day after the Closing Date because the Master Servicer does not
receive the Pre-Cut-off Date Deposit by 3:00 p.m. on the Closing Date and (ii) in accordance
with Section 2.07(b) of this Agreement, the Master Servicer will be entitled only to one Business
Day's earnings on the June Deposit Amount regardless of the number of days the June Deposit
Amount remains on deposit in the Distribution Account pending the final reconciliation
contemplated by such Section 2.07(b). Any earnings on the Pre-Cut-off Date Deposit or the June
Deposit Amount that are not payable to the Master Servicer in accordance with the preceding
understanding shall be distributed to the Certificateholders in accordance with Section 5.01.
The Master Servicer shall deposit from its own funds in the Distribution Account the amount of
. any loss incurred in respect of any such investment of funds immediately upon the realization of
such loss; provided, that the Master Servicer shalf not be required to deposit any loss on an
investment of funds if such loss is incurred solely as a result of the insolvency of the federal or
state chartered depository institution or trust company that holds the Distribution Account, so
long as such depository institution or trust company satisfied the qualifications set forth in the
definition of Eligible Account in the month in' which the loss occurred and at the time such
investment was made and is not the Master Servicer or an Affiliate thereof. The Master Servicer
shall (i) be the "entitlement holder" of any Permitted Investment that is a "security entitlement"
and (ii) maintain "control" of any Pennitted Investment that is either a "certificated security" or
an "uncertificated security." For purposes of this Section 4.01 (e), the terms "entitlement holder,"
"security entitlement," "control," "certificated security" and ''uncertificated security" shall have
the meanings given such teIDlS in Revised Article 8 (1994 Revision) of the uee, and "control"
of any Pennitted Investment by the Master Servicer 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. Except as set forth herein, whether or not the Master
directs the investment of funds in the Dis1ribution Account in Permitted Investments in
accordance with the terms and provisions of this Section 4.01 (e), interest and investment income
realized on funds deposited therein, to the extent of net investment earnings, if any, for the
Dis1ribution Account on the Business Day prior to each Distribution Date, shall be for the sole
and exclusive benefit of the Master Servicer and shall be subject to its withdrawal in accordance
with this.Section 4.01(e).
Section 4.02 Reports to Trustee, Paying Agent and Certificateholders.
(a) On each Distribution Date, the Master Servicer shall have prepared and shall
make available to the Trustee, the Paying Agent, the Controlling Party and each Certificateholder
a written report (each, a -"Remittance Report") substantially in the form of Exhibit J to this
. Agreement.
(b) On each Monthly Reporting Date, the Master Servicer shall have prepared and
shall make available to the Trustee, the Paying Agent, the Controlling Party and each
Certificateholder a written report (each, a ''Monthly Re,porl") substantially in the form of Exhibit
K to this Agreement.
(c) Commencing with respect to the calendar quarter ended June 2008 (with respect
to quarterly reports) and March 2009 (with respect to annual reports), the Special Servicer, in the
case of Specially Serviced Loan, and the Master Servicer, in the case of each Mortgage Loan
or Serviced Mezzanine Loan, shall make reasonable efforts to collect promptly (and, in any
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event, shall attempt to collect within 45 days following the end of the subject quarter or 120 days
following the end of the subject year) from each related Obligor quarterly and annual operating
statements, budgets and rent rolls of the related Mortgaged Property, and quarterly and annual
financial statements of such Obligor, to the extent required pursuant to the terms of the related
Investment Documents. In addition, the Special Servicer shall cause quarterly and annual
operating statements, budgets and rent rolls to be regularly prepared in respect of each REO
Property and shall collect all such items promptly following their preparation. The Special
Servicer shall deliver copies (or images in suitable electronic media) of all of the foregoing items
so collected or obtained by it to the Master S'ervicer within 30 days of its receipt thereof.
(d) Within 30 days after receipt by the Master Servicer from the related Obligors or
otherwise, as to each Mortgage Loan or Serviced Mezzanine Loan and within 30 days after
delivery by the Special Servicer to the Master Servicer, as to Specially Serviced Loans and REO
Properties, of any annual operating statements or rent rolls with respect to any Mortgaged
Property or REO Property, the Master Servicer shall, based upon such operating statements or
rent rolls, prepare (or, if previously prepared, update) the related CMSA Operating Statement
Analysis Report and the related CMSA NOI Adjustment Worksheets. In addition, the Master
Servicer shall deliver to the Controlling Party (in an electronic format, initially Excel format, or
another electronic format reasonably acceptable to the Master Servicer and the Controlling Party)
copies of all such rent rolls and operating statements. All CMSA Operating Statement Analysis
Reports and CMSA NOI Adjustment Worksheets relating to Mortgage Loans or Serviced
Mezzanine Loans including' Specially Serviced Loans and REO Properties shall be maintained
by the Master Servicer. On each Monthly Reporting Date, the Master Servicer shall deliver to
the Controlling Party or any Certificateholder a copy of such CMSA Operating Statement
Analysis (or update thereof) and a copy of such CMSA NOI Adjustment Worksheets (or an
update thereof) and, if requested, the related operating statement, rent rolls or "Tenant Exposure
(substantially in the form of Exhibit L to this Agreement. In addition, with respect to
any Mortgage Loan comprised of two or Mortgaged Properties, the Master Servicer shall
provide CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment Worksheets
on an individual Mortgaged Property basis as well as on a consolidated whole Mortgage Loan
basis (in an electronic format, initially Excel format, or another electronic fonnat reasonably
acceptable to the Master Servicer and the Controlling Party). If the Trust Fund as holder of the
related Investment is entitled to receive operating statements or rent rolls With respect to any
Companion Loan 'or Mezzanine Loan (other than Serviced Mezzanine Loans)" the Master
Servicer shall obtain the same and prepare the reports specified in this clause (d) for such
Investments.
(e) Not later than 2:00 p.m. (New York City time) on the second Business Day before
each Monthly Reporting Date, the Special Servicer shall prepare and deliver or cause to be
delivered to the Master Servicer and the Controlling Party, the following reports (or data files
relating to reports of the Master Servicer) with respect to the Specially Serviced Loans and any
REO Properties for which it is .responsible, providing the required information as of such
Monthly Reporting Date: (i) a CMSA Property File; (ii) a CMSA Special Servicer Loan File;
and ("oi) the CMSA REO Status Report. In addition, the Special Servicer shall from time to time
provide the Master Servicer, the Controlling Party or the Operating Adviser with such
information in the Speci81 possession regarding the Specially Serviced Loans and
REO Properties as may be requested by such party and particularly with regard to the Master
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Servicer as may be requested by the Master Servicer and is reasonably necessary for the Master
Servicer to prepare each report and any supplemental information required to be provided by the
Master Servicer hereunder.
(f) Not later than 12:00 noon (New York City time) on each Monthly Reporting Date
commencing in July 2008, the Master Servicer shall prepare (if and to the extent necessary) and
deliver or cause to be delivered to the Trustee and the Paying Agent, the Special Servicer and the
Controlling Party (if the Controlling Party is not the same entity as the Special Servicer), in a
computer-readable medium downloadable by the Trustee and the Paying Agent, the Special
Servicer and the Controlling Party, each of the files and reports listed in the definition of "CMSA
Investor Reporting Package", providing the most recent information with respect to the
Invesunents for which CMSA reporting is required under this Section 4.02 as of the related
Monthly Reporting Date.
(g) The Master Servicer may, but is not required to, make any of the reports or files
comprising the CMSA Investor Reporting Package available each month on the Master
Servicer's website; In connection with providing access to the Master Servicer's website, the
Master Servicer may require registration and the acceptance of. a disclaimer and otherwise
(subject to the preceding sentence) adopt reasonable rules and procedures, which may include, to
the extent the Master Servicer deems necessary or appropriate, conditioning access on execution
. of an agreement governing the availability, use and disclosure of such information, and which
may provide indemnification to the Master Servicer for any liability or damage that may arise
. therefrom.
(h) The Master Servicer and the Special Servicer may each, absent manifest error,
rely on the reports to be provided by the other. The Trustee and the Paying Agent
may, absent manifest error, conclusively rely on the reports to be provided by the Master
Servicer. The Master Servicer shall have no obligation to provide information or reports that
require information or reports' from the Servicer to any other party until it has received
. the requisite information or reports from the Special Servicer, and the Master Servicer shall not
be in default hereunder due to a delay in providing the reports caused by the Special Servicer's
failure to timely provide any infonnation or report.
(i) Notwithstanding the foregoing, however, the failure of the Master Servicer or the
Special Servicer to disclose any information otherwise required to be disclosed by this Section
shall not constitute a breach of this Section to the extent the Master Servicer or the Special
Servicer so fails because such based on advice of legal counsel to the Master Servicer
or the SpecialServicer, as the case may be, would violate any applicable law or any provision of
a InvQ5tment Document prohibiting disclosure of infonnation with respect to the Investment or
Mortgaged Properties or would constitute a waiver of the attomey-client privilege on behalf of
the Trust Fund unless directed in writing by the Controlling Party to disclose notwithstanding
such waiver. The MaSter Servicer and the Special Servicer may disclose such information or any
Bddinonal information to any Person to the same extent and under the same circumstances that
information covered by Section 11.05(b) of this Agreement is permitted to be disclosed by such
Section 11.05(b). The Master Servicer or the Special Servicer may affix to any information
provided by it any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
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G) On or before the Closing Date, the Depositor shall provide to the Master Servicer.
the Trustee and the Paying Agent the Pre-Closing Date Performance Data. Notwithstanding
anything to the contrary contained in this Agreement, for all pwposes of reporting and
information hereunder, insofar as any such reporting or information relates to any period prior to
the Closing Date and including without limitation for purposes of any remittance or distribution
to be made based on such reports or information, the Master Servicer, the Special Servicer, the
Paying Agent and the Trustee shall be entitled to rely conclusively on the Pre-Closing Date
Performance Data and none of the Master Servicer, the Special Servicer, the Paying Agent or the
Trustee will be under any obligation to verify, confirm or reconcile any Pre-Closing Date
Performance Data.
(k) Iftbe Master Servicer or the Special Servicer is required to deliver any statement,
report or information under any provision of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may satisfy such obligation by (y) delivering such statement, report
or information in' a 'commoniy used electrowc format or (z) making such statement, or
infonnation available on the Master Servicer's internet website or the Trustee's internet website,
unless this Agreement expressly specifies a particular method' ofdelivery.
(I) In preparing or furnishing the reports required by this Section 4'.02, the Master
Se..vicer shall be entitled to reasonably rely on the accuracy of the information or data regarding
the Investments that has been provided to the Master Servicer by the applicable Servicer or any
other party providing such information under the terms of the applicable Investment Documents.
(m) Notwithstanding anything to the contrary contained in the foregoing provisions of
this S'ection 4.02, with respect to any Investment for which CMSA reporting is required under
this Section 4.02, if such Investment is serviced pwsuant to one of the Assigned Agreements or
another servicing or admi,;,istration agreement in effect as of the Closing Date, then tJte Master
Servicer sballnot be obligated to provide CMSA reporting with resPect to such Investment to the
extent that such reporting is not required of the applicable servicer or administrator under such
agreement; proVided, however, that the Master Servicer will still forward to the Controlling Party
such comparable information as it does receive from such servicer or administrator in the form in
which received from such servicer or administrator, and provided further, however, that with
respect to any such Investment as to which CMSA reporting would otherwise be required under
this Section 4.02, if such administrator or servicer or the related borrower provides to the Master
Servicer the property-level information required to produce an Operating Analysis
Report and the Tenant Exposure Report, the Master Seryicer will still produce such reports (but
no other CMSA reports) with respect to such Investment
(n) Upon the reasonable advance written request of. any Certificateholder, the Master
Servicer shall provide or cause to be provided (or, to the extent that such information or
documentation is not required to be 'provided by the applicable Servicer under the applicable
Assigned Agreement or mvestment Documents, shall use reasonable efforts to obtain such
information and documentation from such Servicer, and provide) ,to such Certificateholders such
reports and access to information and documentation regazdi.ng the InvestIi:lents as such
Certificateholders may request.
so
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Section 4.03 Establishment of Delayed Draw Account; Funding of Unfunded Forward
Commitments.
(a) The Master Servicer shall at all times during the term of this Agreement while any
Unfunded Forward Commitments' remain 'outstanding maintain an Eligible Account entitled
"Bank of America, National Association, as Master Servicer, in trust for the holders of
Maiden Lane Commercial Mortgage Pass-Through Certificates, Series 2008-1, Delayed Draw
Accounf'. The Delayed Draw Account shall be fwther sub-divided into two separate sub-ledgers
for each Investment to which a specific Unfunded Forward Commitment relates identified as the
Unfunded Forward Commitment. sub-ledger and the Rate Lock Res'erve sub-ledger. Subject to
the provisions of this Section 4.03, the Master Servicer shall have the right to make withdrawals
from the Delayed Draw Account. On the Closing' Date. the Depositor shall deposit an amount
equal to the aggregate Unfunded .Forward Commitmentli and the aggregate Rate Lock Reserves
as of the Closing Date into the Delayed Draw Account This account will initially be established
at State Street Bank and Trust Company ("State Street'') in accordance with the Delayed Draw
Account Agreement and may only be moved by written direction from the Controlling party to
an Eligible Account. The Controlling party shall be an authorized signatory to the account and
shall be permitted pursuant to Section 4.03(b) to invest and reinvest funds on deposit without the
Master Servicer's consent or involvement The parties to this Agreement; the Controlling Party
and each by its acceptance of a Certificate acknowledge and agree that (i) the
Delayed Draw Account bas been established at State Street pui'sUant to the Delayed Draw
ACC()unt Agreement at the direction of the Controlling Party, (ii) at the direction of the
Controlling Party, the Master Servicer shall enforce the Delayed Draw Account Agreement on
behalf and at the expense of the Trust Fund, (iii) none of the Master Servicer, the Special
Servicer. the Depositor the Trustee shall pave any responsibility or liability to any Person,
under this' Agreement or otherwise, for the fuilu.re of State Street to perform its obligations under
the Delayed Draw Account Agreement, including without limitation any fiillure by State Street
, timely to wire amoUnts as instructed in order to fund advances required under the Investment
Documents, any failure of State Street to maintain sub-ledgers as instructed with respect to the
Unfunded Forward Commitments or Rate Lock Reserves or to provide accurate statements with
,respect to the balances of such sub- ledgers and any failure of State Street of any kind
whatsoever as regm:ds the investment or reinvestment of funds on deposit in the Delayed Draw
Account '
(b) Funds on deposit in the Delayed Draw Account shall be invested, and the
proceeds of investments shall be reinvested, in Pecnitted Investments pursuant to the direction of
the Controlling Party to State Street in accordance with the Delayed Draw Account Agreement
The Master Servicer shall deposit into the Delayed Draw Account from amounts on deposit in
the Distribution Account pursuant to Section 4.01(d) the amount of any net principal loss
realized on the investment of funds in the Delayed Draw Account as of the most recent statement
from State Street identifying such loss. Any earnings on such Pecnitted Investments shall be
distributed in accordance with Section 4.03(g) upon the written direction of the CQntrolling
Party. Any Pennitted Investments' acquiJ:OO with funds on deposit in the Delayed Draw Account
shall be either immediately available or available 'in accordance with a schedule that will pennit
the Master Servicer to meet ' the payment obligations of the Trust Fund in connection with the
Unfunded Forward Commitments.
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(c) The Master Servicer shall only make withdrawals from the Delayed Dmw
Account upon the receipt of instructions from the Controlling Party. The Depositor shall have no
interest in or right of withdrawal from the Delayed Dmw Account.
(d) The Master Servicer shall give the Trustee and the Controlling Party immediate
notice if the Master Servicer receives notice or becomes aware that the Delayed Dmw Account
or any funds or securities deposited therein become subject to any writ. order, judgment. warrant
of attachment. execution or similar process.
(e) Amounts received by the Master Servicer in respect of any payment of principal
of the Investment identified as the Quarter Circle Mortgage Loan on the Investment Schedule on
or before the date on which the related Unfunded Forward Commitment expires (unless the
Controlling Party shall have instructed to retain amounts related to such Unfunded Forward
Commitment beyond such expiration date) shall be deposited by the Master Servicer into the
applicable sub-ledger of the Delayed Draw Account to which such Investment relates. The
Master Servicer shall notify the Controlling Party promptly upon the deposit of any such funds to
the Delayed Dmw Account and identifying the amount of such deposit
(f) The Master Servicer shall, in a timely manner, obtain all documentation and
information required in connection with any request by an Obligor to fund, in whole or in part,
any Unfunded Forward Commitment. provide such documentation and information to the
Controllmg' Party, together with the Master Servicer's determination of whether or . not the
Obligor has satisfied all to funding of such Unfunded Forward Commitnient in
accordance with the related DocUments, together with its determination of whether
any amount should be released to the Obligor from the related Rate Lock Reserve in connection
with such funding, and request the approval or disapproval of the Controlling Party of such
request for funding and, if applicable, release. If the Controlling Party that the
conditions to such funding and, if applicable, 'release set forth in the related Investment
Documents have been satisfied, the Controlling Party shall instruct the Master Servicer to fund
such Unfunded Forward Commitment and, if applic::able, release the amount specified from the
related Rate Lock Reserve in with the related Investment Documents. If the
Controlling Party detennines. that the conditions to any such funding have not been satisfied and
the Controlling Party elects to waive any such condition, the Controlling Party may instnict the
.Master Servicer to fund such U:nfunded Forward Commitment notwithstanding such failwe. If
. the Controlling Party that conditions to any such funding have not been satisfied
and'elects not to waive such conditions, the Controlling Party shall instruct the Master Servicer
not to fund such Unfunded Future Commitment and to so advise the related Obligor. If,
thereafter, the Obligor submits additional evidence of the satisfaction of any such conditions, the
,Master Servicer shall provide such evidence to the ControUing Party for review. If directed by
the Controlling Party in writing to fund any Unfunded Forward Commitment and, if applicable,
rdease the specified from the related Rate Lock Reserve, the Master Servicer shall
withdraw from the Delayed Draw Account and distribute the amount of such funding and, if
applicable, release approved by the Controlling Party to or at the direction of the Obligor in
accordance with the related Investment Documents.
(g) To the extent any Unfunded Forward Commitments expire taking into
consideration any extensions granted by the Controlling Party or amounts remain on deposit in a
..
52
(11'W; NYLEOAL:7S6S66.19] 06I2SI2008 06:44 PM
:i.:.
sub-ledger of a Delayed Draw Account in excess of the aggregate remaining Unfunded Forward
Commitments, including any earnings on Permitted Investments from funds on deposit in the
Delayed Draw Account, the Master Servicer shall, at the written direction of the Controlling
Party, deposit such amounts into the Distribution Account for distribution on the following
Distribution Date to the Certificatebolders as part of the Available Distribution Amount. The
Master Servicer shall not be entitled to an earnings on Permitted Investments acquired with such
funds deposited in the Distribution Accotint. Upon any such expiration of any Unfunded Forward
Commitment, the Master Servicer, at the written direction of the Controlling Party, shall release
any remaining Rate Lock Reserves in accordance with the related Investment Documents.
Section 4.04 Duties of the Master Servicer; Enforcement of Servicers; Master
Servicer's Obligations.
(a) The Master Servicer shall service and administer the Investments on behalf of the
Trustee, and in the best interests and for the benefit of the Certificateholders, in accordance with
any and aU applicable laws, the terms of the Investment Documents and this Agreement and in
accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section
4.08, (i) the Master Servicer shall service an!i administer all Investments for which a Servicing
Transfer Event has not occurred, (ii) the applicable Special Servicer shall service and administer
each Mortgage Loan and Serviced Mezzanine Loan (other than a Corrected Loan) as to which a
Servicing Transfer Bvent bas occurred and for which it is the applicable Special Servicer;
provided, the Master Servicer shall continue to make SerVicing Advances required
hereunder with respect to any Specially Serviced Loans and REO Properties, receive payments,
collect information'and deliver reports required hereunder with respect to any Specially Serviced
Loans and REO Properties, and render such incidental services with respect to any Specially
Serviced Loans and REO Properties as are specifically provided for herein.
(b) Subject to the tenDs and provisions of this Agreement and any consent required
from the Controlling Party or contraly direction by the Controlling Party, 'the Master Servicer
shall have.full power and authority, acting alone or through the Prinuiry 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 genemlity of the foregoing, the Master
Servicer, in its own name or in the name of the Trustee, is hereby auihorized and empowered by
the Trustee to execute and deliver, on behalf of the ' Certificateholders, the Trustee, or any of
them: (i) any and all financing control agreements, continuation statements and other
documents or instruments necessary perfect or maintain the lien created by the Mortgage or
other security in the related Mortgage File or Mezzanine 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 (ill) subject to Sections 4.06 and 4.07 any and all assumptions. modifications,
waivers, substitutions, amendments, consents, including but not limited to, transfers
of interests in Pbligors, consents to any subordinate financings to be secured by any related
Mortgaged Property, consents to any mezmnine financing to be secured by ownership interests
in an Obligor, '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
53
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Obligor 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 Mortgage Loan or
Serviced Mezzanine Loan under the related Investment Docwnents, lease subordination
agreements, non..<fisturbance and attornment agreements or other leasing or rental anangements
that may be requested by any Obligor or its tenants, documents granting, modifying or releasing
(or joining the Obligor therein) any easements, covenants, conditions. restrictiollS, 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
Mortgage Loan or Serviced Mezzanine Loan and any' other consents. The Trustee shall, at the
written request of a Servicing Officer of the Master Servicer, furnish, or cause to be so furnished,
to the Master Servicer. any limited powers of attorney and other documents (each of which shall
be prepared by such Master Servicer) necessary or appropriate to enable it to carry out its
servicing and administrative duties hereunder; provided, however, that the Trustee shall not be
held liable for any misuse of any such power of attorney by the Master Servicer.
(c) The Master Servicer, on behalf of the Trustee and the Certificateholders shall
monitor the performance of the Primary Servicers under the Assigned Agreements and the other
Servicers under the applicable Invesbnent Documents, and, to. the extent empowered to do SO
under the Servicing Agreements with such Servicers and the related Investment Documents,
shall cause the Servicers duly and punctually to perform all of their duties and
obligations thereunder. The Master Servicer shall oversee and consult with each Servicer as
necessary from time-to-time to carry out the Master Servicer's obligatiollS hereunder, shall
receive. review and evaluate all reports, information and other data provided to the Master
Servicer by each Servicer and, to' the extent empowered to do so under the Servicing Agreements
with such Servicers and the related Investment Documents, shall cause each Servicer to perform
and observe the covenants, obligations and conditions to be performed or observed by such
Servicer under its applicable Servicing Agreement The Master Servicer shall independently and
separately monitor each Servicer's servicing activities with respect to each related Investment,
reconcile the 'results of such monitoring with such information provided in the previous sentence
on a monthly basis 8n.d coordinate corrective adjustments to the Servicers' and Master Servicer's
records, and based on such reconciled and corrected information, the Master Servicer shall
provide the reports required hereunder and prepare any other information and statements
required to be forwarded by the' Master hereunder. The Master Servicer shall reconcile
the results of its monitoring with the actual remittances of the Servicers pursuant to
the applicable Servicing Agreements. The Master Servicer shall maintain its qualifications to do
business and allliccoses'necessary to perform its obligations under this Agreement The Master
Servicer, for the benefit of the Trustee and the Certificateholders, shall enforce the obligations of
each Primary Servicer under the related Assigned Agreement, and shall, in the event that a
PrimaIy Servicer fails to perform its obligations in accordance with the related Assigned
Agreement, act as the Primary Servicer of the related Mortgage Loans and Serviced Mezzanine
Loans subject to the fullowing clause.
Cd) Upon the occurrence of a default of a Primary Servicer under an Assigned
Agreement or by any other Servicer under any applicable Investment Document of which an
Authorized Officer of the Master Servicer has actual knowledge, the Master Servicer shall
promptly notify the Trustee and the 'Controlling Party thereof, and shall specifY in such notice the
54
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action, if any, the Master Servicer proposes taking in respect of such default So long as any
such default shall be continuing, the Master Servicer shall at the direction of the Controlling
party: (i) tenninate all of the rights and powers of such Primary Servicer pursuant to the
applicable provisions of the related Assigned Agreement or, with respect to any other Servicer,
exercise such remedies as may be available to the Trustee as holder of the related Investment
under the related Investment Docwnents; (ii) exercise any rights it may have to enforce the
related Assigned Agreement or applicable Investment Docwnents against such Servicer; and/or
(iii) waive any such default under the related Assigned Agreement or applicable Investment
Documents or take any other action with respect to such demult as is permitted thereunder. The
Master Servicer agrees to provided access to the Controlling Party to its records, systems and
officers relating to its duties as Master Servicer,.including the Servicers and Investments.
Upon any temrination by the Master Servicer of a Primary Servicer's rights and powers
pursuant to its Assigned Agreement, the rights and powers of such Primary Servicer with respect
to the related Investments shall vest in the Master Servicer and the Master Servicer shall be the
successor in all respects to such Primary Servicer in its capacity as Primary Servicer with respect
to such Investments under the Assigned Agreement, dated as of May 6, 2003, between the
Depositor and the Master Servicer (such agreement, the "Designated Servicing Agreement'')
unless or until the Controlling Party shall have appointed a new Person to serve as successor to
such Primary Servicer; provided, however, that, unless otherwise agreed between the Master
Servicer and the Controlling Party, the Servicing Fee payable to the Master Servicer in its
capacity as Primary Servicer with respect to such Investments shall be the Servicing Fee that
would have been to the terminated Primary Servicer under the terminated Assigned
Agreement The Controlling Party may, at any time, replace the Master Servicer as successor
Prim8l)' Servicer with respect to all or any of the Investments previously serviced wider such
terminated Assigned Servicing Agreement by appointing a successor Primary Servicer. Upon
appointment of a successor Primary Servicer, as authorized this Section 4.04{ e), at the
direction of the Controlling Party, the Trustee and such successor Primary Servicer shall enter
into a servicing in a form substantially similar to the Designated Servicing Agreement
(as detelDlined by the Controlling Party) or as otherwise directed by the Controlling Party: In
connection with any such appointment, the Controlling Party may make such arrangements for
.the compensation of such successor Primary as it and such successor Primary Servicer
shall agree.
The Master Servicer shall pay the costs of such enforcement (including the termination of
a Primary Servicer, the appointment of a successor servicer or the transfer and assumption of the
servicing by the Master Servicer). Any such payment of costs by the Master Servicer shall be a
Servicing Advance reimbursable to the Master Servicer in accordance with this Agreement
(e) Upon any telIDination of a Servicer's rights and powers pursuant to its Assigned
Agreement, the Master Servicer shall promptly notify the Trustee,. specifying in such notice that
the Master Servicer or any successor servicer, as the case may be, has succeeded such Servicer
under the related Assigned Agreement, which notice shall also specify the name and address of
. any such successor servicer. .
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(f) Neither the Depositor, the Master Servicer nor the Trustee shall consent to the
assignment by any Servicer of such Servicer's rights and obligations under the related Assigned
Agreement or Investment Documents without prior written consent of the Controlling Party.
Section 4.05 Servicing Advances.
(a) (i) Notwithstanding anything in Section 4.04 to the contrary, promptly, but in any
event within two (2) Business Days upon obtaining knowledge that the full .amount of any
Servicing Advance required to be made by any Primary Servicer under any Assigned Agreement
(including payment of all expenses incurred by it in colUlection with its servicing activities
thereunder, the premiums for any blanket policy or the standby fee or similar premium,
if any, for any master force placed policy obtained by it insuringagainst hazard losses) has not
been so made, or any such Servicing Advance required hereunder m accordance with the
Servicing Standard but not required to be made by the Primary Servicer under the applicable
Assigned Agreement, the Master Servicer shall make the portion of such Servicing Advance that
was not made by the applicable Primary Servicer; provided that the Master Serviccr shall obtain
the prior written consent of the Controlling Party before making any Servicing Advance that
would cause the aggregate Servicing Advances not yet reimbursed by the related Obligor or
otherwise recovered from the related Collateral to exceed (x) $1,000,000 with respect to any
Investment or (y) $2,000,000 in any calendar month; provided, further, that if the Master
Servicer determines in accordance with the Servicing Standard that any such Servicing Advance,
if made, would not be recoverable from general collections on the Invesbnents in accordance
with Section 4.01(d), the Master Servicer shall immediately notifY the Controlling Party of such
determination, specifying the amount and purpose of such Servicing Advance and the date on
such Servicing Advance must be made in order to avoid adverse consequences to the
Trust Fund (such as the cancellation ofan insurance policy). Any such Servicing Advance as to
which such determination has been made by the Master Servicer is referred to here as a
"PotentiaJly Nonrecoverable Servicing Advance". The Master Servicer will not make any
Potentially Nonrecoverable Servicing Advance except as provided in Section 4.05(a)(ii) below.
(ii) The Controlling Party, if it desires that such PotentiaJly Nonrecoverable
Servicing Advance be made, may request that the Certificateholders deposit the funds necessary .
to make such Potentially Nonrecoverable Servicing Advance and direct the Master Servicer to
make such Potentially Nonrecoverable Servicing Advance using such funds so deposited. . Upon
request of the Controlling Party, the Master Servicer shall reimburse the Certificateholders for
any Potentially Nonrecoverable Servicing Advance from the Distribution Account to the same
extent that the Master Servicer would reimburse itself in respect of a Servicing Advance;
provided, however, that any such reimbursement of the Certificateholders shall be made on any
date only to the extent that funds are available therefor and only if all outstanding and
unreimbursed Servicing Advances made by the Master Servicer have been reimbursed to the
Master Servicer in full.
(iii) If the Master Servicer is required to make any such SerVicing Advance
hereunder in accordance with the terms and provisions of a Special Servicing Agreement, or
otherwise, such Special Servicer shall promptly provide the Master Servicer with such
docwnentation regarding the subject Servicing Advance as such Master Servicer may reasonably
request
56
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(iv) Notwithstanding any provision hereof to the contrary, neither the Master
Servicer nor the Special Servicer shall have any obligation to make any advance of principal or
interest with respect to any Investment held in the Trust.
(b) The Servicer shall 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, for so long as such Servicing Advance is outstanding. The Master Servicer shall
reimburse itself for any Servicing Advance made by it with respect to any Investment as soon as
practicable after funds available for such purpose are deposited in the Distribution Account
(c) NotwitJJstanding anything to the contrary set forth herein, the Master Servicer
.may (and. at the written direction of the Controlling Party, shall) pay directly out of the
Distribution Account any servicing expense that would constitute a Servicing Advance.
Section 4.06 "Due-on-Sale" Clauses; Clauses.
(a) If the provisions of any Mortgage Loan or Serviced Mezzanine Loan expressly
permits the assignment of the related Mortgaged Property or other Collateral tp, and assumption
of such Mortgage Loan or Serviced Mezzanine Loan by, another 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
Obligor requests approval for such an assignment and assumption or enters into a transfer of the
related Mortgaged Property or other Collateral in violation of the related Investment Documents,
or if the provisions of any Mortgage Loan or Serviced Mezzanine 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 encumbmnce, and the related Obligor requests
approval for sUcp a further encumbrance or enters into a further encumbrance in violation of the
related Investment Documents, the Master Servicer 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 (m the case ofa Obligor reqUest for approval
thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance
clause or (ii) it: ill the best interest of the Trust Fund, approve the request or waive the
effect of the due-on-sale or due-on-encumbrance clause; provided. however, that all of the
following condition and/or restriction shall apply:
(i) subject to the related Invesbnent Documents and applicable law, the
Master Servicer shall not enter into such approval or waiver unless the Controlling Party
shall provide its written consent and all associated costs and expenses are covered
without any to the Trust Fund (it being understOod aDd agreed that, except as
expressly provided herein, the Master Servicer shall not be obligated to cover or assume
any such costs or expenses). .
(b) In connection with any permitted assumption of any Mortgage Loan or Serviced
Mezzanine Loan or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master. Servicer shall prepare all documents necessary and appropriate for such purposes and
shall coordinate with the related Obligor for the due execution and delivery of such documents.
57
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Section 4.07 Modifications, Waivers, Amendments and Consents.
(a) In addition, notwithstanding anything in any other Section of this Agreement to
the contrary, the Master Servicer wiU not be pennitted to take, or consent to another party's
taking, any of the actions identified in clauses (i) through (ix) of this sentence unless and until
the Master Servicer has notified the Controlling Party and the Controlling Party has consented
thereto in writing having been notified thereof in wrltIDg and having been provided with all
reasonably requested infonnation with respect thereto: (i) any modification, amendment or
waiver of a monetary term (including a change in the timing of payments or any non-monetary
term (excluding the waiver of any "due-on-sale" or "due-on-encwnbrance" clause, which clauses
are addressed in clause (ix) below); (ii) any acceptance of a discounted payoff with respect to
any Specially Seryiced Loan; (iii) any detennination to bring an Property into compliance
with applicable environmental laws or to otherwise address Hazardous Materials located at an
'. REO Property; (iv) any release of collateml for any Mortgage Loan or Serviced Mezzanine Loan
(except that in circumstances where the release of collateral is made upon a satisf3ction of the
subject Mortgage Loan or Serviced Mezzanine Loan); (v) any acceptance of substitute or
additionill collateral for a Mortgage Loan or Scviced Mezzanine Loan (except that in
circumstances where the acceptance of the substitute or additional collateral is not conditioned
on obtaining the consent of the lender); (vi) 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 Mortgage Loan (except that in circumstances 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 Investment
Documents do not include the approval of the lender or the exercise of lender disc'retion (other
than confinning the satisfaction of the other conditions to the transaction set forth in the related
investment Documents that do not include any other approval or exercise; (vii) any teimination
or replacement, or consent to the tennination or replacement, of a Servicer or property manager
with respect to any Mortgaged Property securing a Mortgage Loan or Mezzanine Loan
(except that in circumstances where the relevant Mortgage Loan or. Serviced Mezzanine Loan
has a principal balance of less than $2,500,000) 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; (viii) any approval of the assignment of Mortgaged
PropertY securing any Mortgage Loan or Serviceq Mezzanine Loan. to and assumption o.f Such
Mortgage Loan or Serviced Mezzanine Loan by another Person, any waiver of a "due-on-sale"
danse in any Mortgage Loan or Serviced Mezzanine Loan,. any approval of a further
encumbrance of the Mortgaged Property securing any Mortgage Loan or Serviced Mezzanine
Loan or any waiver of a "due-on-encumbrance" clause in any Mortgage Loan or Serviced
Mezzanine Loan; and (ix) any determination as to whether any type of property-level insurance
is required under the terms of any Mortgage Loan or Serviced Mezzanine 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 detennination or exercise of discretion with
respect to property-level insurance.
(b) AIl 'modifications, material waivers and other material actions
entered into or taken in respect of the Mortgage Loans or Serviced Mezzanine Loans pursuant to
this Section and all material consents, shall be in writing. The Master Servicer shall notify the
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Trustee and the Controlling Party in writing, of any material modification, waiver, amendment or
other action entered into or taken thereby in respect of any Investment pursuant to this Section
and the date thereof, and shall deliver to the Custodian, on behalf of the Trustee, for deposit in
the related Investment File, an original counterpart of the agreement relating to such
mQdification, waiver, amendment or other action agreed to or taken by it, promptly (and in any
event ten (10) Business Days) following the execution thereof.
Notwithstanding the foregoing, unless directed to do so in writing by the Controlling
Party, the Master Servicer shall not consent or otherwise act with respect to modifications,
waivers, amendments, consents or other modifications of the terms of any Investment unless (i)
such modification, waiver, amendment or consent would not constitute a "significant
modification" within the meaning of Section 1001 of the Code and the Treasury Regulations
promulgated thereunder or (li) the Master Servicer has received advice of counsel that such
modification, waiver, amendment or consent will not jeopardize the status of any portion of the
Trost Fund which is a grantor trust, as a grantor trust under subpart E, part I of subchapter J of
chapter 1 of the Code.
Notwithstanding anything in this Agreement to the contrary, no direction from the
Controlling Party may (and the Master Servicer shall promptly advise the Controlling Party that
the Master Servicer has determined, in its reasonable,. good faithjudgment, will) require or cause
. the Master Servicer to take any action that would result in a violation of (or refrain from taking
any aCtion necessary to avoid a violation of) any law of any applicable jurisdiction. Any action
taken by the Master Servicer pmsuant to a direction of the Controlling Party shall be deemed to
comply with the Servicing Standard and otherwise with this Agreement for pmposes.
(c) . The Controlling Party shall be. reimbursed by the Trust Fund for all costs and
expenses incUJ."Ied in connection with the enforcement or preservation of any rights under this
Agreement, or under any. applicable Investment Document or other applicable
including fees and expenses of counsel to the Controlling Party.
Section 4.08 Transfer of Servicing:
(a) Upon written directiOI\ from the Party that a Servicing Transfer Event
has occurred with respect to any Mortgage Loan. or ServiC?OO Mezzanine Loan, the Master
Servicer shall immediately give notice thereof to the Trustee and the Controlling Party, and upon
the written direction of the Controlling Party, shall suspend the servicing of such Investment
. under the applicable Assigned Agreement in accordance with the terms and provisions thereof
and retain a special servicer (such party, the "Special to specially service such
Mortgage Loan or Serviced Mezzanine Loan under a separate written agreement pertaining to
such Specially Serviced Loan or the related REO Property (such agreement, the applicable
"Special Servicing Agreemenf'). As determined by the Controlling Party, such Special
Servicing Agreement shall set forth tenns and provisions governing the special servicing and
administration of such Specially Serviced Loan and/or related REO Property in substantially the
form set forth in Exhibit I hereto, as well as such Special Servicer's compensation with respect
thereto (such compensation, the "Special Servicing 'For the avoidance of doubt, if any of
the events described in clauses (a) through (g) of the definition of "Specially Serviced Loan"
have occurred with. respect to a Mortgage Loan or Serviced Mezzanine Loan, but the Controlling
59
Party has not directed that a Servicing Transfer Event has occurred, then by definition, no
Servicing Transfer Event has occurred with respect to such Mortgage Loan or Serviced
Mezzanine Loan, and notwithstanding anything to the contrary in this Agreement or otherwise,
Bank of America. N.A. shaU continue to perfonn its responsibilities as Master Servicer and shall
be under no obligation whatsoever to perform any of the obligations of the Special Servicer with
respect to such Mortgage Loan or Serviced Mezzanine Loan Wlless and until the Controlling
Party provides such direction. Unless otherwise provided by the Controlling Party or the
Operating Adviser, Bank of America, N.A. shall be the initial Special Servicer upon the
occurrence of a Servicing Transfer Event and shall perform the obligations of the Special
Servicer hereunder and under Exhibit I hereto. Unless otherwise .agreed between Bank of
America, N.A. and the Controlling Party, as .compensation for acting as Special Servicer
hereunder, Bank of America, N.A. shall be entitled to the .Special Servicing Fee, Liquidation Fee
and Workout Fee, as applicable.
(b) Upon the occurrence ofa Servicing Transfer Event and subsequent execution ofa
Special Servicing Agreement, the MaSter Servicer 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 infonnation, documents (or copies thereof) and records (including
records stored electronicaUy on computer tapes, magnetic discs and the like) relating to such
Mortgage Loan or Serviced Mezzanine Loan and reasonably requested by the applicable Special
Servicer to enable such Special Servicer to assume its functions hereunder with respect thereto.
The information, and records to be delivered by the 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,
uec Financing Statements and tenant estoppels, to the extent they are in the possession of the
Master Servicer. The Master Servicer shall use its best reasonable efforts to comply with the
preceding two sentences within five Business Days of the occurrence of each related Servicing
Transfer Event No later than ten Business Days before the Master Servicer is required to deliver
a copy of the related Servicing File to the applicable Special Servicer, the Master Servicer shall
review such Servicing File and request from the Custodian and/or applicable PrimaIy Serviccr
any material documents that it is aware are missing from such Servicing File.
. (c) Upon direction from the Controlling Party that a Specially Serviced Loan has
become a Corrected Loan, the applicable Special Servicer shall immediately give written notice
thereof to the Master Servicer, the Trustee and the Controlling Party and shall return the related
Servicing File .within five Business Days to the Master Servicer. Upon giving such notice and
retuming such Servicing File to the Master Servicer, the applicable Special Servicer's obligation
to service such Mortgage Loan or Serviced Mezzanine Loan, and the applicable Special
Secvicer's right to receive the Special Servicing Fee with respect to such Mortgage Loan or
Serviced Mezzanine Loan, shall terminate, and the obligations of the Master Serviccr to service
and administer such Mortgage Loan or.Serviced Mezzanine Loan shall resume.
(d) In servicing any Specially Serviced Loan, the applicable Special Servicer shall
provide to the Custodian, acting on behalf of the Trustee, originals of documents contemplated
by the definition of Investment File and generated while the subject Mortgage Loan or Serviced
Mexvm;nc Loan is a Specially Serviced Loan, for inclusion in the related Inveslment File (with a
copy of each such original to the Master Servicer), and copies of any additional related Mortgage
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Loan or Serviced Mezzanine Loan information, including correspondence with the related
Obligor generated while the subject Mortgage Loan or Serviced Mezzanine Loan is a Specially
Serviced Loan.
(e) The 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
Mortgage Loan or Serviced Mezzanine Loan or REO Property and as shall reasonably
required by the requesting party in order to perform its duties herCunder .
. (f) In connection with the performance of its obligatjons hereunder with respect to
any Mortgage Loan or Serviced Mezzanine Loan or REO Property, each of the Master Servicer
and the applicable Special Servicer shall be entitled to rely upon written information provided to
it by the other.
Section 4.09 Replacement of Special Servicer.
(a) The Controlling Party may remove the Special Servicer hereunder (with or
without cause and as to all Investments or any specific Investments) and appoint a successor to
the Special Servicer; provided, 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 covered by, and be reimbursable as, a Servicing Advance.
(b) Any Special Servicer terminated pursuant to clause (a) shall be deemed to have
been so terminated simultaneously with the designated successor's becoming the Special
Servicer hereunder; provided.. that (i) the terminated Special Servicer sball be entitled to receive,
in connection with its tennination, payment of all of its accrued and unpaid Special Servicing
Fees, as and to the extent provided in the Special Servicing Agreement, and reimbursement from
the successor to such tenninated Special Servicer of all outStanding Servicing Expenses covered
by such terminated Special Servicer. Such tennjDsted Special Servicer shall cooperate with the
Controlling Party and the Master Servicer and the replacement to such terminated Special
Servicer in effecting the transfer of such terminated Servicer's responsibilities and rights
hereunder to its successor.
(c). In addition, to Section 4.07, the Controlling Party may direct the Master
Servicer to take, or to refrain from taking, such actions as the Controlling Party may deem
advisable with reSpect to the servicing and administration of Specially Serviced Loans and/or
REO Properties or as to which is otherwise made herein. UpOn reasonable the
Master Servicer shall provide the Controlling Party with any information in the Master
Servicer's possession with respect to such matters, including, without limitation, its reasons for
determining to take a proposed action.
Section 4.10 Operating Adviser.
(a) The Controlling Party shall be entitled to select an Operating Adviser. Upon the
receipt by the Trustee, the Master Servicer, the Paying Agent, the Depositor and "the Certificate
Registrar of a written notice of the selection of an Operating Adviser from the Controlling Party,
and except as may be limited in such notice, the Person designated as an Operating Adviser in
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such notice shall be. entitled to exercise the authority of the Controlling Party hereunder and all
notices to, or consents required to be given by, the Controlling Party hereunder shall be delivered
to, or consented to by, the Operating Adviser on behalf of the Controlling Party. No
appointment of any Person as an Operating Adviser shall be effective until such Person provides
the Trustee, the Master Servicer, the Paying Agent, the Depositor and the Certificate Registrar
with (i) written confinnation of its acceptance of such appointment, (ii) an address and facsimile
number for the delivery of notices and other correspondence and (iii) 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 nwnbers).
(b) Once an Operating Adviser has been selected in accordance with this Section
4.10. each of the Trustee, the Master Servicer, the Paying Agent, the Depositor and the
Certificate Registrar shall be entitled to rely on such selection unless the Controlling Party shall
have notified such parties in writing of the resignation or r e ~ o v a l of such Opernting Adviser.
(c) If a claim is made against the Controlling Party or the Operating Adviser by an
Obligor with respect to this Agreement, any Special Servicing Agreement or any p3rticuJar
Investment, the Operating Adviser shall immediately notify the Trustee, the Paying Agent, the
Master Servicer and the Depositor and the provisions of Section 11.03 shall apply to any such
claim.
(d) Each Holder acknowledges and agrees. by its acceptance of its Certificates, that:
(i) the Operating Adviser may have special relationships and interests that conflict with those of
certain Holders; (ii) the Operating Adviser does not have any duties or liability whatsoever to
any Holder other than the Controlling Party; (iii) the Operating Adviser may take actions that
favor interests of the Controlling Party over the interests of other Holders; and (iv) the Operating
Adviser shall have no liability whatsoever for having so acted. and no Holder may take any
action whatsoever against. the Operating Adviser or any director. officer, employee, agent or
principal thereof for having so acted.
(e) The Controlling Party is hereby designated, as the party entitled to exercise or
waive any Control Rights with respect to any Investment on behalf of the Trust Fund and the
Holders and, as it deems necessary, may direct the Master Servicer with respect to the exercise of
or waiver. of such Control Rights. With respect to each applicable Investment, the Master
Servicer shall inform the related Servicer, the related Special Servicer and all other related
parties to the applicable Investment Documents that such the Controlling Party is entitled to
notice and consent with respect to, and the Controlling Party is entitled to exercise such rights
and powers as set forth in under the definition of Control Rights in accordance with the terms
and provisions of such Investment Documents and, further, the Trustee shall take such other
actions as may be required under any such agreement in order to permit the Controlling Party to
exercise such rights and powers.
(f) With respect to each Companion Loan and any other Investment that constitutes
part of a larger overall financing involving an arrangement with other parties providing such
financing, whenever the Trustee or the Master Servicer is requested in writing pursuant to the
related Investment Documents governing such arrangement, to take any action or to give any
consent, approval or waiver that it is entitled to take or give under such agreement as the holder,
62
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..
or representative of the holder, of such Investment, including, without limitation, in connection
with an amendment of any such agreement or the occurrence of a default thereunder, the Trustee
or the Master Servicer shall promptly notify the Controlling party and of such request in such
detail as is available to it and shall be required, 9n behalf of the Holders, to take such reasonable
in connection with the exercise and/or enforcement of any rights and/or remedies
. available to it in such capacity with respect to such request as the Controlling party shall direct in
writing, subject to the terms of this Agreement; provided, that if no such direction is received
prior to the date that is established for taking such action or giving such consent, approval or
waiver (notice of which date shall be given by the Trustee to the Controlling Party), the Trustee
or the Master shall abstain from taking such action or giving such consent, approval or
waiver. It is understood that the Controlling Party is authorized, but oot required, to act on
behalf of the Trust Fund directly with respect to any such action, consent, approval or waiver,
. and need not act through 9r direct the Trustee or the Master Servicer. The Controlling Party
shall pr:ovide written notice to the Master Semcer, the Special Servicer and the Trustee, of any
action it so takes directly; such notice shall be given promptly after taking such action but in no
event later than five Business Days after taking such action. Neither the Trustee nor the Master
Servicer shall be liable for any action taken by it at the direction of the Controlling Party as
contemplated hereby, for the failure to any such action if it shall not have received
'appropriate direction from the Comrolling Party, or for any action taken by the Controlling Party
directly.
(g) To the extent any Investment Documents provides for indemnification of the
. person exercising Control Rights against liability for actions taken or for refraining from taking
any action in good faith, or for errors in judgmeot, the Trustee shall cooperate with the
Controlling' party in the Controlling Party's enforcement of such rights to indemnification at no
expense to the Trustee.
Section 4.11 Inspections.
(a) To the extent that the related Primary Servicer is not require4.to do 'so under the
applicable Assigned Agreement (or fails to do so), the Master Servicer shall, subject to the
provisions of Section 4.11(b), at its own expense, inspect or cause to be iDspected each
Mopgaged ProPertY (other than Mortgaged Properties related to Specially Serviced Loans and
Properties); every calendar in 2009, or every second calendar year
beginning in 2009 if the unpaid principal balance of the re1ate4 Mortgage Loan or Serviced
Mezvmine Loan is less than $2,000,000. The Master Servioor shall prepare (and, promptly
following preparation, if there bas been a material adverse change in the condition of the subject
Mortgaged Property or REO Property, as applicable), deliver to the Controlling Party a written
report of each such inspection perfonned by it or on 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 the Master
Servicer, material and is evident from such inspection, (Ii) any abandonment of the Mortgaged
Property, (ill) any change in the condition or value of the Mortgaged Property ibat is, in the
reasonable judgment of the Master 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 form. for
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the presentation of such information) as may from'time to time be recommended by the CMSA
for commercial mortgage-backed securities transactions genemlly. The Master Servicer shall
deliver to the Controlling Party each such written report prepared by it, in each case, or for any
action taken by the Controlling Party directly.
(b) Notwithstanding the foregoing, with respect to Companion Loans and Mezzanine
Loans, (i) if the Trust Fund as holder of the related Investment is entitled to receive a copy of
inspection reports prepared by the related Servicer (or the servicer of the related mortgage loan),
the Master Servicer shall obtain the same and provide such inspections in accordance with this
Section 4.11; (ii) if the Trust Fund as holder of the related Investment is entitled to conduct
of the related Mortgaged Property, then the Master Servicer shall conduct such,
inspections upon the direction of the Controlling Party at the expense of the Trust Fund; and (iii)
if the Trust Fund is not entitled to obtain or conduct an inspection of the Mortgaged Property
related to any such Investment, then the Master Servicer will not be required to provide anY'such
inspections in accordance with this Section 4.11.
ARTICLE V
DISTRlBUI10NS TO HOLDERS OF CERTIFICATES
Section 5.01 Distributions Generally.
(a) Subject to Section 7.01 respecting the final distribution on the Certificates, on
each Distribution Date the Paying Agent shall make distriJ?utions in accordance with this
Article V. Such distributions 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 Registrar with written
wiring instructions no less than five Days prior t9 the related Record Date ('Yhich
wiring instructions may be in the fonD. 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 will be made in like
manner, but only upon presentation and surrender of such Certificate at the Certificate
Registrar's designated office or such other location specified in the notice to Certificateholders
of such fmal distribution." If any ,payment required' to' be made on the Certificates is to be made
on a day that is not a Business Day, then such payment will be made on the next succeeding
Business Day.
(b) All or allOcations made with respect to the Certificateholders on each
Distribution Date shall be aJlocated among the outstanding Certificates pro rata based on their
respective Percentage Interests.
Section 5.02 Distributions from the Distribution Account
On each Distribution Date, the Available Distribution Amount shall be withdrawn by the
Paying Agent from funds on deposit in the Distribution Account and allocated among the
Certificates pro rata based on their respective Percentage Interests.
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ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.0 I Duties of Trustee.
. (a) The Trustee, except during the continuance of an Event of Default, undertakes to
perform such duties and only such duties as are specifically set forth in this Agreement Any
permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of'
the Trustee. If an Event of Default has occurred and has not otherwise been cured or waived, the
Trustee shall exercise c' .. t b this en use the
same egret of care and skill in their exercise as a rodent Person would exercise or use under
ClICumstanceS in the conduct of such Person's own affairs, unless the Trustee is acting as
master servicer of the Investments, in which case it shall use the same degree of care and skill as
a master servicer of the Investments hereunder.
. (b) The Trustee, upon receipt of certificates, statements, opinions,
reports, documents, orders or other instruments furniShed to the Trustee which are specifically
. reqilired to be pursuant to any provision of this Agreement, shall examine them to
detennine whether they are in the form required by this Agreement to the extent specified herein;
provided, however, that the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or other instrument
furnished by the Master Servicer or any Servicer or any other Person to the Trustee pursuant to
this Agreement, and shall not be n:quired to recalculate or verify any numerical information
furnished to the Trustee pursuant to this Agreement Subject to the immediately preceding
sentence, if any such resolution, certificate, statement, opinion, report, document, order or other
instrument is found not to conform to the form required by this Agreement in a material manner,
the Trustee shall notify the Person providing such instrument of such nonconformance and
request that such instrument be corrected, and if the instrument is not corrected to the Trustee's
satisfaction, the Trustee will notice thereof to the Registrar, who will provide
notice thereof to the Controlling Party and will, at the expense of the Trust Fund, which expense
shall be reasonable given the scope and nature of the requiied action, take Such further action as
by the Controlling Party.
(c) The Trustee shall not have any liability arising out of or in connection with this
Agreement, except for its fraud, bad faith, negligence or willful misconduct or breach of its
representations and wmranties hereunder. Notwithstanding anything in this Agreement to the
contrary, the Trustee shall not be liable for special, indirect or consequential losses 'or damages
of any kind whatsoever (mcluding, but not limited to, lost profits). No provision of this
Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own bad faith, willful misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with respect to any action taken,
suffered or omiUed to be taken by it in good fiUth in accordance with the direction of the
Controlling Party as provided herein;
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[1PW: NYLEGAL:7S6S66.19) 06I2SI2008 06:44 PM
(ii) No provision of L'iis Agreement shan require the Trustee to expend or risk
its own funds or otherwise incur any financial liability or expense in the performance of
any of its duties hereunder, or in the exercise ofany of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk, expense or liability IS not reasonably assured to it; and none of the
provisions contained in this Agreement shall in any event require the Tnistee to perfonn
(except in its capacity as successor Master Servicer hereunder), or be responsible for the
manner of performance of, any of the obligations of the Master Servicer under this
Agreement or the Servicers under the Assigned Agreements, or the Custodian under the
Custodial Agreement;
(iii) The Trustee shall not be responsible for any act or omission of the Master
Servicer, the Paying Agent, the Custodian, the Depositor, the Operating Adviser, State
Street, the Designated Accounting Firm or any Servicer;
(iv) Notwithstanding the provisions herein for delivery to the Trustee of
certain files, reports, data, certificates, assessments, attestations and other documents and
information pursuant to Article IV or Article X or otherwise hereunder, the Trustee shall ~ e
responsible only to retain such materials as are so delivered to it, and shall have no responsibility
to review or confirm the sufficiency thereof for any purpose. .
(d) The Trustee shaH have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to have been delivered
to or served upon it by any Person as a consequence of the assigrunent of any Investment
hereunder; provided. however, that the Trustee shall promptly forward a copy thereof to .the
Master Servicer and the Controlling Party upon receipt any such complaint, claim, demand,
notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii)
of which a Responsible Officer has actual knowledge, and (iii) which contains information
sufficient to pennit the Trustee to make a determination that such document relates to the
Investments.
(e) The Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the direction of the
Controlling Party as 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.
(f) The Trustee shall not be required to perform services under this Agreement, or to
expend or risk its own funds or otherwise incur financial liability for the performance of any of
its duties h e r e u n ~ e r or the exercise of any of its rights or powers ifthere i's reasonable ground for
believing that the timely payment of its fees and expenses or the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably' assured to it, and none of the
provisions contained in this Agreement shall in any event require the Trustee to perform, or be
responsible for the manner of performance of, any of the obligations of the Paying Agent,
Certificate' Registrar, Master Servicer or any Servicer under this Agreement or any Assigned
Agreement except during such time, ifany, as the Trustee shall be the successor to, and be vested
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with the rights, duties, powers and privileges ot: the Master Servicer in accordance with the
terms of this Agreement
(g) Neither the Trustee nor the Paying Agent shall be held liable by reason of any
insufficiency in the Distribution Account resulting from any investment loss on any Permitted
Investment included therein (except that the foregoing shall not be assumed to release the
Trustee from its obligations or liability under any such investment for which the Trustee in its
com.titercial capacity is the obligor and has defaulted thereon).
(h) . The Trustee shaU not have ll:DY duty (A) to see to any recording, filing, or
depositing of this Agreement" or any agreement referred to herein or any finimcing statement or
continuation statement evidencing a security interest, or to see to the maintenance of any such
recording or filing or depositing or to any rerecordiilg, refiling or redepositing of any thereof, (B)
to see to any (e) to see to ,the payment or discharge of any tax, assessment, or other
governmental charge or any Hen 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 the Distribution
Account, or (0) to confinn or verifY the contents of any reports or certificates of the Master
Servicer or any Servicer delivered to the Trustee pursuant to this Agreement believed by the
Trustee to be genuine and to have been signed or presented by the proper party or parties.
(i) The Trustee shall not be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or other officers of the Trustee unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts.
G) Notwithstanding anything in this Agreement to the confIary, the Trustee shall not
be liable for special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits), even if the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form. of action.
(k) The Trustee is hereby authorized to enter into the
TPM
m:gan Guaranty in its
capacity as Trustee hereunder. The Trustee shall enforce its rights and remedies as Trustee under
the JPMorgan Guaranty on behalf of me cern:ncateholaers m accordance with the written
directions of the Controlling Party, and shall deliver any amounts received thereunder to the
Master Servicer for deposit into the Distribution Account in accordance with Section 4.01(b).
The Trustee's obligation to take such action shall be subject to the terms hereof (including
without limitation its rights hereunder to be indemnified and reimbursed for associated eXpenses)
Section 6.02 Certain Matters Affecting the Trustee.
Except as provided in Section 6.01:
(i) The Trustee may request, and may rely arid 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, notice, request, consent,
order, approval, bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
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(ii) The Trustee may consult with counsel and any advice of its counselor
Opinion of Counsel slUlll be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized or within the
diScretion or rights or powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be continuing, the
Trustee shall not be bound make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided "the same appears regular on
its face), unless requested in writing to do so by the Controlling Party; prOVided,
however, that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such investigation is, in
"the opinion of the Trustee not reasonably assured to the Trustee by the security afforded
to it by the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability or payment of such estimated expenses from the
Certificateholders as a condition "to proceeding. The reasonable expense thereof shall be
paid by the party requesting such investigation and if not reimbursed by the requesting
party shall be reimbursed to the Trustee by the Trust Fund;
(v) The Trustee may any or powers or perform
any duties hereunder eitlier dIrectly or b or throu . s or attome s
-wbicli cllS 0 ans or omeys shall have any and all of the rights, powers, duties
ana obligations of the coriferrea Oilffiem br suCh appoihtmeot;-provided;1:hanhe
". 'fniSiee shall continue to be respoDSlble roiItS-duties andOblfgations hereunder to the
extent provided herein, and provided further that the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney appointed with
due care by the Trustee;
(vi) The right of the Trustee to perform any discretionary act enumerated in
this Agreement shall not- be construed as a duty, and "the Trustee shall not be answerable
for other than its negligence, fraud, bad faith or willful misconduct in the peifoonance of
""
(vii) The"Trustee shall npt be required to give any bond or surety in respect of
the execution of the Trust Fund created hereby or the powers granted hereunder.
Section 6.03 Trustee Not Liable for Certificates.
" Other than as set forth in Section 2.04, the Trustee makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates (other than the certificate of
authentication on the Certificates) or of any Investment, or related document save that the
Trustee represents that, assuming due execution and" delivery by the other parties hereto, this
Agreement has been duly authorized, executed and delivered by it and constitutes its valid and
" "
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binding obligation, enforceable against it in accordance with its tenns except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally, and (B) genera! principles of
equity regardless of whether such enforcement is conSidered in a proceeding in equity or at law.
The Trustee shall not be accountable for the use or application by the Depositor of funds paid to
the Depositor in consideration of the assignment of the Investments to the Trust Fund by the
Depositor or for the use or application of any funds deposited into the Distribution Account or
any other fund or account maintained with respect to the Certificates. The Trustee shall not be
responsible for the legality or validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be issued hereunder. The
Trustee shall have no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder or to record this Agreement.
Section Trustee May Own Certificates.
The Trustee and any Affiliate or agent thereof in its individual or any other capacity may
become the owner or pledgee of Certificates and may transact banking and trust business with
the other parties hereto and their Affiliates with the same rights it would have if it were not
Trustee or such agent.
Section 6.05 Eligibility Requirements for Trustee.
the Trustee hereunder shall at all times be (i) an institution insured by the FDIC or a
successor thereto, (ii) a national banking association, organized and doing business under the
laws of the United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal authority and (ill) not an AfIiliate.ofthe Master Servicer
or any Servicer. If such national banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section 6.05, the comtiined capital and surplus of such
national banking association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the Trustee shall cease to
be eligible ip accordance with provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 6.06.
Section 6.06 Removal of Trustee.
(a) The Trustee may at any time resign and be discharged fiom the trust hereby
created by giving written notice thereof to the Q>ntrolling Party, the Operating Adviser, the
Depositor and the Master Servicer. Upon receiving such notice of resignation, the Controlling
. party will promptly appoint a successor trustee by written instrument, one copy of
instrument shall be delivered to the resigning Trustee one copy to the successor trustee and one
copy to the Master Servicer. If no successor trustee shall have been so appointed and shall have
accepted appointment within 30 days after the giving of such notice of resigruition, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of a successor
trustee.
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(b) If at any time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.05 and shall fail to resign after written request therefor by the Controlling
party, (ii) the Trustee shall become incapable of acting. or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the
Trust Fund by any state in which the Trustee or the Trust Fund held by the Trustee is located or
(iv) the Trustee has failed to comply with theprovisions of Article X hereof: then the Controlling
Party may remove the Trustee and the Controlling Party may appoint a successor trustee by .
written instrument, one copy of which instrument shall be delivered to the Trustee so removed,
one copy each to the successor trustee and one copy to the Master Servicer.
(c) The Controlling Party may at any time upon 30 days' written notice to the Trustee
and the Master Servicer remove the Trustee by such written instrument, signed by such
Controlling Party or its attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee and one copy to the Master Servicer; the
Controlling Party shall thereupon appoint a successor trustee in accordance with this Sec lion
6.06.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee
pwsuant to any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.07.
Section 6.07 Successor Trustee.
. {a) Any successor trustee appointed as provided in Section 6.06 shall execute,
acknowledge and deliver to the Master Servicer and the Certificateholders and to its predecessor
~ a n instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor trustee without any
. further act, deed or conveyance, shall beoome fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally named as trustee or
securities administrator, as applicable, herein. The predecessor trustee shall deliver to the
successo.r trustee (or assign to the .. Trustee its interest under the Custodial Agreement) all
Investment Files and documents and statements related to each Investment File held by it
hereunder, and shall duly assign, transfer, deliver and pay over to the successpr trustee. the entire
Trust Fund, together with all necessary instruments of transfer and assignment or other
documents delivered to it for execution, properly executed and necessary to effect such transfer
and such of the records or copies thereof maintained by the predecessor trustee in the
administration hereof as may be requested by the successor trustee and ' shall thereupon be
discharged from all duties and responsibilities under this Agreement In addition, the
predecessor trustee shall execute and deliver such other instruments delivered to it for execution,
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.
(b) No suocessor trustee shall accept appointment as provided in this Section unless at
the time of such appointment such successor trustee shall be eligible under the provisions of
. Section 6.05.
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(c) Upon acceptance of appointment by a successor trustee as provided in this
Section, the predecessor trustee shall mail notice of the of such trustee hereunder to
all Holders of Certificates at their addresses as shown in the Certificate Register, the Controlling
Party and the Operating Adviser.
Section 6.08 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or with which it may be consolidated,
or any Person resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any Persons succeeding to the business of the Trustee, shall be the successor to the
Trustee hereunder, withou(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 that, in the
case of the Trustee, such Person be eligible under the provisions of Section 6.05.
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee with the
consent of the Controlling Party shall have the power from time to time to appoint one or more
Persons, approved by the Trustee, to act either as co-trustees jointly with the Trustee, or as
. separate trustees, or as custodians, for the purpose of holding title to, foreclosing or otherwise
taking action with respect to any Investment outside the state where the Trustee has its principal
place of business where such separate trustee or co-trustee is necessmy or advisable (or the
Trustee has been advised by the Master Servicer in writing that such separate trustee or co-
trustee is necessary or advisable) under the laws of any state which a property securing a
Investment is located or for the purpose of otherwise conforming to any legal requirement,
restriction or in any state in which a property securing a Investinent is located or in any
state in which any portion of the Trust Fund is located. The Trustee shall notify the Controlling
Party of the of any Co-Trustee within five Business Days after the appointment
thereof. The separate Trustees, co-trustees, or so' appointed shall be 1rustees or
custodians for the benefit of all the Gertificateholders and shall have such powers, rights and
remedies as shall be specified in the instrument of appointment; provided, however, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of the Trustee.
0 Every separate trustee, co-trustee, and custodian shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the Trustee in
respect of the receipt, custody and payment of moneys shall be exercised solely by the
Trustee;
(ii) all other rights, powers, duties and obligations conferred or imposed upon
the Trostee shall be conferred or imposed upOn and exercised or performed by the
Trustee and such separate trustee, co-trustee, or custodian jointly, except to the extent that
under any law of any jurisdiction in which any particular act or acts are to be performed
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
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Trust Fund or any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by reason of
any act or omission of any other trustee or custodian hereunder; and
(iv) the Trustee may at any time, by an instrument in writing executed by it,
with the concuaence of the Controlling Party, accept the resignation of or remove any
separate trustee, co-trustee or custodian, so appointed by it or them, if such resignation or
removal does not violate the other terms of lhis Agreement.
(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 instroment appointing any separate trustee, co-trustee or custodian shall refer to
lhis Agreement and the conditions of this Article VI. Each separate trustee ~ d 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 ofthls 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 and a copy given to the Master
Servicer.
(d) Any separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If
any separate trustee, co-trustee or custodian shall die, become ~ p a b l e 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) No separate trustee, co-trustee or custodian hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder and no notice to the
Certificateholders (other than the Controlling Party) of the appointment shall be required under
Section 6.07 hereof:
(f) The Trustee agrees to instruct the co-trustees, if any, to the extent necessary to
fulfill the Trustee's obligations hereunder.
(g) The reasonable compensation of the co-trustees (which compensation shall not
reduce any compensation payable.to the Trustee under such Section) shall be payable 110m the
Trust Fund in accordance with Section 4.0 1 (d).
Section 6.10 Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents which shall be
authorized to act on behalf of the Trustee in authenticating CertifiCates. Wherever reference is
made in this Agreement to the authentication of Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include authentication on behalf
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of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or of any state,
having a combined capital and surplus of at least $15,000,000, authorized under such laws to do
a trust business and subject to supervision or examination by federal or state authorities.
(b) Any Person into whieh 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 may at any time resign by giving at least 30 days'
advance written notice of resignation. to the Trustee and the CertificatehoJders. The Trustee may
at any time terminate the agency of any Authenticating Agent by giving written notice of
temtination to such Authenticating Agent and the Certificateholders. Upon receiving a notice of
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 6.10, the Trustee may
appoint a successor authenticating agent and shall give written notice of such appointment to the.
Certificateholders. Any successor authenticating agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating Agent No
successor authenticating agent shall be appointed unless eligible under the provisions of this
Section 6.10. No Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee .
. Section 6.11 Indemnification of the Trustee.
The Trustee, and its respective directors, officers, employees and agents shall be entitled
to indemnification from the Trust Fund for any loss, liability or expense (Including, without
limitation, reasonable attomeys' "fees. and disbursements), incurred without negligence, fraud,
bad faith or wi11fu1 misconduct on its p ~ arising out of, or in connection with, the acceptance or
administration of the trusts created hereunder or in connection with the performance of its duties
hereunder, or under any Acknowledgment or Assigned Agreement or the Custodial Agreement
including the costs and expenses of defending itself against any claim. in connection with the
exercise or performance of any of its poWers or duties hereunder, provided that
(i) with respect to any such claim, the Trustee sbaIl have given the
Certificateholders, the Controlling Party and the Operating Adviser written notice thereof
promptly after the Trustee shall have knowledge thereof, provided, however, that failure
to give the Certificateholders, the Controlling Party and the Opeiating Adviser such
notice shall not affect the Trustee's rights to indemnification hereunder, and
(ii) notwithstanding anything to the contrary in this Section 6.11, the Trust
Fund shall not be liable for settlement of any such claim by the Trustee entered into
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without the prior cOnsent of the Controlling Party, which consent shall not be
unreasonably withheld or delayed.
The provisions of this Section 6.11 shall survive any tennination of this Agreement and
the resignation or removal ofthe Trustee and shall be construed to include, but not be limited to
any loss, liability or expense under any environmental law.
Section 6.12 Fees of the Trustee.
As compensation for its services hereunder, the Trustee shall be entitled to receive 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) which shall be paid by the Master Servicer annually in advance:
beginning on the first Distribution Date in July 2008 and annually thereafter on the anniversary
of the Closing Date from amounts on deposit in the Distribution Account in accordance with
Section 4.01(d). In addition, on the first Distribution Date in July 2008, the Trustee shall be
entitled to receive an "acceptance fee" in the amount of $12,000, together with the attorney's fees
and expenses incurred by the Trustee in connection with entering into this Agreement as set forth
in a statement delivered to the Master Servicer. Such amounts shall be paid to the Trustee by the
Master Servicer in accordance with Section 4.0 1 (d).
Section 6.13 Collection of Monies.
-.: Except as otherwise expressly provided in this Agreement, the Master Servicer, on behalf
of the Trustee, may demand payment or delivery of, and shall receive and collect, all money
payable to or receivable by the Master Servicer, on behalf of the Trustee, pUISUant to this
Agreement. The Master Servicer, on behalf of the Trustee, shall hold all such money and
property received by it as part of the Trust Fund and shall distribute it as provided in this
Agreement.
Section 6.14 Events of Default; Trustee To Act; Appointment of Successor.
(a) The oCcurrence of anyone or more of the following events sball constitute an
''Event of Defaulf':
. (i) Any failure by the Master Servicer to provide the reports described in
Section 4.02.which continues unremedied for a period of one (1) Business Day after the
date upon which written notice of such failure shall have been given to such Master
Servicer by the Trustee, the Paying Agent or the Controlling Party; or
(ii) Any failure on the part of the Master Servicer duly to observe or perform
in any material respect any of the covenants or agreements (other than those refened to in
(i), (viii) or [IX) . of this Section 6."14(a on the part of the Master Servicer contained in
this Agreement which unremedied for period of 30 days after the date on
which written notice of such fiillure, requiring the same to be shall have been
given to the Master Servicer by the Trustee, the Paying Agent or the Controlling Party;
or
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(iii) A decree or order of a
O
court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
proceedings, or for the winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to the Master
Servicer or of or relating to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to pay its debts
genemlly as they become due, file 0 a petition too take advantage of any applicable
insolvency or reorganiiation statute, make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose of all or
substantially all of its assets, or consolidate with or merge into another entity or shall
permit another entity to consolidate or merge into it, such that the resulting entity does
not meet the criteria for a successor servicer as specified in Section 11.02 hereof; or
(vii) A representation or warranty set forth in Section 9.02 hereof shall prov'"e to
be incorrect as of the time made in any respect that materially and adversely affects the
interests of the Certificateholders, and the circumstance or condition in respect of which
such representation or warranty 0 was incorrect shall not have been eliminated or cured
within 30 days after the date on which written notice of suCh incorrect representation or
warranty shall have been given to the Master Servicer by the Trustee or the Controlling
Party; or
(viii) A sale or pledge of any of the rights of the Master Servicer hereunder or
an assignment of this Agreement by the Master Servicer or a delegation of the rights or
duties of the Master Servicer hereunder shall have occurred in any manner not otherwise
pennitted and without the prior written consent of the Trustee, the Paying
Agent and the Contro.lling Party; or 0 0
(ix) After receipt of written notice from the Trustee, the Paying Agent or the
Controlling Party, any failure of the Master Servicer to make any Servicing Advances
required to- be made hereUnder and such fhllure is not cured within two Business Days
after such notice.
If an Event of Default shall occur, then, in each and every case, subject to applicable law,
so long as any such Event of Default shall not have been remedied within any period of time
prescribed by this Section, the Trustee, by notice in writing to the Master Servicer shall if
directed by the Controll" P . of the rights and obli nons of the Master
eIVlcer ereunder and in and to the Investments and the proceeds thereof. On or after the
receipt by the Master Servicer of such written notice, all authority and power of the Master
Servicer, and only in its capacity as Master Servicer under this Agreement, whether with respect
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to the Investments or otherwise, shall pass to and be vested in the Trustee; and the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the defaulting Master
Servicer 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
Investments and related or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the 'termination of the defaulting Master Servicer's
responsibilities and rights hereunder as Master Servicer including, without limitation, notifying
the Servicers of the assignment of the master servicing function and providing the Trustee or its
designee all documents and records in electronic or other form reasonably requested by it to
enable the Trustee or its designee to assume the defaulting Master Servicer's functions hereunder
and the transfer to the Trustee for administration by it of all amounts which shall at the time be
or should have been deposited by the defaulting Master Servicer in the Distribution Account and
any other account or fund maintained with respect to the Certificates or thereafter received with
respect to the Investments. The Master Servicer being terminated shall bear all reasonable out-
of-pocket costs of a master servicing transfer, including but not limited to those of the Trustee
and the Controlling Party reasonably allocable to legal fees and expenses, accounting and
fmancial consulting fees and expenses, and costs of amending the Agreement, if necessary.
Notwithstanding the termination of its activities as Master Servicer, each tenninated
Master Servicer shall continue to be entitled to uDder this Agreement to the
ex:tent such reimbursement-relates to the period prior to such Master Servicer's termination.
If any: Event of Default of which a Responsible Officer of the Trustee shall have actual
knowledge shall occur; the Trustee, upon becomin aware 0 ' nce. theroof,-ShalL
,promptly notify the Master Se . e ontrollin of such
Event of DefaUlt kriown to it. "-, -
(b) On and after the time the Master Servicer receives a notice of termination from
the Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation of the Master
Servicer evidenced by an OpiDion, of Counsel pursuant to Section 11.04, the Trustee, unless and
Until another master servicer shall have been a ointed b the Controlliii P shan be the
su c 0 e Master ca ch under this A cement and
the transactions set forth or rovided for herein and shall have all the . wers and be
e responsibilities, dutie reto and arisin thereafter
p aced on easter ervlcer hereunder, including the obligation to make Servicing Advances
WIth respect to the Investments: prOvided, however, that any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to cOQperate or to provide information or
monies as required by this Agreement shall not be considered a default by the Trustee hereunder.
In addition, the Trustee shall have no responsibility for any act or omission of the Master
Servicer prior to the receipt by the Master Servicer of any notice of ten;nination. The Trustee
shall have no liability relating to the representations and warranties of the Master Servicer set
fOrth in Section 9.02. In the Trustee's capacity as such successor, the Trustee shall have all of
'the obligations of, and the same limitations on liability herein granted to, the Master Servicer
(provided that the foregoing shall not impose upon the Trustee any liabilities or obligations
arising or accruing prior to the effective date of its becoming successor Master Servicer, and
shall not impose upon it any liability for the actions or omissions of the predecessor Master
76
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Servicer). As compensation therefor, the Trustee shall be entitled to receive all compensat:ion
payable to the Master Servicer pursuant to Section 9.03 of this Agreement
(c) Notwithstanding the above, the Trustee may, if it shall be unwilling to continue to
so act, or shall, if it is unable to so act, request that the Controlling Party appoint a successor
master servicer or, if after 90 days of such request, the Controlling Party has not appointed a
successor master servicer, petition a court of competent jurisdiction to appoint any established
commercial loan master servicer having a net worth of not less tbari $15,000,000 and meeting
such other standards for a successor master servicer as are set forth in this Agreement, as the
successor to such Master Servicer in the assumption of all of the responsibilities, duties or
liabilities of a master servicer, like the Master Servicer. In connection with such appointment
and assumption, the Controlling Party may make such arrangements for the compensation of
such successor out of payments 9n Investments, as it an4 such successor shall agree. The
Trustee and such successor shan take such actions" with this Agreement, as shall be
necessary to effectuate any such succession may make' other arrangements with re!lpect to
the servicing to be conducted hereunder which are not inconsistent herewith. The Master
Servicer shall cooperate with the Trustee and any. successor master semcer in effecting the
, termination of the Master Servicer's responsibilities and rights hereunder including, without
, limitation, notifying' Obligors of the assignment of the master servicing functions and providing
the Trustee and successor master servicer, as applicable, all documents and records in electronic
or other form reasonably requested by it to enable it to assume the Master Servicer's functions
hereunder and the transfer to the Trustee or such successor master servicer, as applicable, all
, amounts' which shan at the time be or should have been deposited by the Master Servicer in the
DiStribution Account and any other account or fund maintained with respect to the Certificates or
thereafter be received with respect to the Investments. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder by reason of any fhllure to
make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Master Servicer to or any delay in delivering, cash, documents or records
to it, (ii) the failure of the Master Servicer to cqoperate as required by this Agreement, (ii i) ' the
failure of the Master Servicer to deliver the Investment data to the Trustee as required by this
Agreement or (iv) restrictions imposed by any regulatory authority having jurisdiction over the
Master Servicer. No successor master servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution hereunder or any portion
tbereo{caused by (i) the fiillure of a predecessor master servicer to deliver, or any delay in
delivering cash, documents or records to it related to such distributiollt or (ii) the fiillure of a
predecessor master servicer to cooperate as required by this Agreement.
Section 6.15 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 s ecified in Section 6.14, sbaJl have
the ri in its own name as trustee of e Trust F tic now or e r
existing at aw, in equity or by statute to enfoi:ce its rights and remedies and to protect the
tfiterests; and eiifi)rce the nghts ana remedies, of the certificateliolders (mclu&ng the iDSbtUtion -
and prosecution of all 'udic' other sane .
e t in connection therewith. Except as otherwise expressly provided in this
no remedy pro.vided for by this Agreement sbal1 be exclusive of any other remedYI
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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 Defau1l
Section 6.16 Waiver of Defau1ts.
The Controlling Party may waive any default or Event of Default by the Master Servicer
in the performance of its obligations hereunder or any defau1t by the Trustee or any Special
Servicer. Upon any such waiver of a past default, such default shall cease to ex,ist, and any
Event of Default arising therefrom shall be deemed to have been remedied for every pwpose of
this Agreement No such waiver shall extend to any subsequent or other default or impair any
right consequent thereon except to the extent expressly so waived.
Section 6.17 Tax Matters
(a) It is the intention of the parties hereto that, for federal and state income and state
and 10ca1 franchise tax purposes, the Trust Fund shall not be treated as (i) an association subject
separately to taxation as a corporation, (ii) a ''publicly traded partnership" as defined in Treasury
Regulation Section 1.7704-1 promulgated under the Code or (iii) a "taxable mortgage pool" as
defined in Section 7701{i) of the Code. None of the Controlling Party, the Depositor, ,Master
Servicer, the Trustee nor any holder of a Certificate shall take 8I)Y action or fail to take any
action that wou1d cause the Trust Fund (or any portion thereof) to be taxable as (i) an association
subject separately to taxation as a corporation, (ii) a '''publicly traded partnership" as defmed in
Treasmy Regulation Section 1.7704-1 promulgated under the Code or (iii) a ''taxable mortgage
pool" as defined in Section 7701{i) of the Code, including but not limited to, the issuance of
more than one class of securities, whether they be debt or equity, of the Trust Fund that would
, have suchresu1t Any such party proposing the issuance of more than one Class of Certificates
representing interests in or of the Trust Fund shall obtain an Opinion Qf Counsel that
such action would not cause the Trust Fund to be taxable in the manner by clauses
(i), (ii), and (iii) of this Section 6.17{a).
(b) Each holder of a by its acceptance thereot: covenants and agrees that
it will not issue interests 'in or obligations secured by such Certificate or issue any interest or
obligation the timing or amount of payments on are determined based on the payments
(whether actual or expected) on such in each case in a manner cause the
Trust Fund to becOme a ''taxable mortgage pool" within the meaning of Section 7701 (i) of the
Code and the regulations promulgated thereunder. '
(c) For so long as the Controlling Party shall be the single beneficial owner of the
Certificates, the parties hereto anc,t such beneficiai owner shall treat each of (i) the portion of the
Trust Fund consisting of the Investments, exclusive of any UnfuodedForward Commitments,
and (n) each Unfunded Forward Commitment, at any such time that such Unfunded Forward
ColIllIiitment is funded., as a "grantor trust"' for federal income tax purposes. Based upon stich
cbaractepzation, the Master Servicer shall retain the Designated Accounting Finn on behalf of
the Trust Fund to prepare and file with the Internal Revenue Service and applicable state or local
tax authorities, income tax information returns for each taxable year with respect to each such
grantor trust The Master Servicer shall provide the Designated Accounting Finn with such
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infonnation as it requires to prepare and file such returns and the Trustee shall execute such
returns in its capacity as Trustee hereunder; provided, however, that the Master Servicer shall not
be required to provide any information other than the information it gathers in the normal course
of its duties under this Agreement nor shall the Master Servicer be required to compile or present
such information in any manner other than the forms of reports and statements it provides in the
nonnal course of its duties under this Agreement. For federal income tax purposes, each such
grantor trust shall have a calendar year taxable year. The Master Servicer shall pay the fees and
expenses of the Designated Accounting Firm (as approved by the Controlling Party) as an
expense of the Trust Fund in accordance with Section 4.0 1 (d). The parties to this Agreement and
each Certificateholder by its acceptance of a Certificate acknowledge and agree that (i) the
Master Servicer is retaining the Designated Accounting Firm at the direction of the Controlling
Party, (ii) the Master Servicer shall enforce any engagement agreement with the Designated
Accounting Finn on behalf of and at the expense of the Trust Fund, and (iii) except for the
provision of information to the Designated Accounting Firm to the extent required by the
foregoing provisions of this paragraph (c), the Master Servicer shall have no responsibility or
. liability to any Person, under this Agreement or olherwise, for any failure of Ihe Designated
Accounting Firm to prepare tax returns, nor shall the Master Servicer otherwise have any
responsibility for any tax returns.
(d) If at any time there is more' than one beneficial owner of the Certificates and the
Trust Fund shall not constitute one or more "grantor trusts" for federal income tax purposes, the
parties hereto and such beneficial owners shall "treat the Trust Fund created hereunder as a
partnership for federal income tax pmposes. Further such parties and beneficial holders shall
comply with the exception provided in Treasury Regulation section 1.7704-1(h) to prevent
interests in such partnerships from being readily tradable on a secondary market or the
substantial equivalent thereof:. To that end, the Certificates shall be subject to the f91l0wing:
(i) The Certificates shall not be registered under the Securities Act, or any
state or other applicable law.
(Ii) Any Transfer of a Certificate shall consist of the entirety of such
Certificate and no Transfers of partial percentage interests in a Certificate shall be made,
unless the transferee shall have received the prior written consent of the Controlling Party
to such partial Transfer.
(iii) Any transferee of a Certificate shall represent that it is (i) a citizen or
resident of the United States, (ii) a COlpOration, partnership or other entity created or
organized in or under the laws of the United States or any state thereof (including for this
purpose the District of Columbia) which, if such entity is a tax-exempt entity, recognizes
that payments with respect to the Certificates may constitute unrelated business taxable
income, (iii) an estate or trust all the income of which is includible in gross income for
United States Federal income tax purposes, or (iv) an entity not in (Ii) or (iii)
whose ownership of the Certificate is effectively Connected with its conduct of a trade or
business within the United States (within the meaning of the Code).
(iv) Prior to the date on which the first interest payment on a Certificate is due
to any transferee, it will provide to the Paying Agent (i) if the transferee is created or
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organized in or under the laws of a jurisdiction outside the United States, two duly
completed copies of United States Internal Revenue Service Form W -8ECr or any
successor applicable or required forms, (ii) a duly completed copy of United States
InternaJ Revenue Service Form W-9 or any successor applicable or required fonns, and
(iii) such other fonns and information as may be required to confum the availability of
any appHcable exemption from United States Federal, state or local withholding taxes.
The transferee shall agree to provide to the Paying Agent like additional subsequent duly
" completed forms satisfactory to the Paying Agent on or before the date that any such
fonn expires or becomes obsolete, or upon the occurrence of any event requiring an
amendment, resubmission or change in the most recent form previously delivered by it,
and to provide such extensions or renewals as may be reasonably requested by the Paying
Agent
(v) Any transferee shall represent that it has not acquired any interest in the
Certificates, and shall not Transfer any interest in the Certificates or cause any such
interest to be marketed, on or through (i) an "established securities market" within the
meaning of Section 7704(bXl) of the Code and any Treasury regulation thereunder,
including, without limitation, an over-the-counter-market or an interdeaJer quotation
system that regularly disseminates firm buy or sell quotations or (ii) a "secondary marlcet
(or the substantial equivalent thereof)" within the meaning of Section 7704(b) (2) of the
Code and any Treasmy regulation thereunder, including a market wherein interests in the
Certificates are regularly quoted by any Person making a market in such interests and a
market wherein any Person regularly makes available bid or offer quotes with respect to
interests in the Certificates and stands ready to effect buy or sell transactions at "the
quoted prices for itself or on behalf of others. ' .
(vi) Any transferee shall represent that it (i) is not, and will not become, a
partnership, a Subchapter S corporation or a grantor trust., in each case, as described in
the Code or (ii) is a partnership, Subchapter S coIporation or a grantor trust, in each case,
as descri.bed in the Code. but no more than 50 percent of the aggregate value of its assets
will at any time consist of Certificates (a transferee meeting these requirements being a
"PTP Tax Holder''). In the event of any breach of the representation that such transferee
is and shall remain a YIP Tax Holder. such transferee shall (1) notify the Trustee and the
Controlling Party promptly upon such transferee becomm.g aware of such breach, and
thereupon the transferee hereby agrees to use reasonable efforts to procure a replacement
investor meeting the definition of PTP Tax Holder that is acceptable to the Controlling
Party to replace such affected transferee, and (li) take all actions necess8I)' to pennit a
replacement investor to succeed to its rights under the Certificate. .
(vii) There shall at no time be more than 80 PTP Tax Holders.
(viii) Notwithstanding anything to the contrary herein, no certificate or
representation by Maiden Lane LLC shall be required in connection with the initial
transfer of the Certificates to Maiden Lane LLC.
(e) The Trust Fund shall not be treated as a "widely held fixed investment trust" for
. federal income tax information reporting purposes.
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ARTiCLEVrr
TERMINA nON OF TIlE TRUST FUND
7.01 Termination of Trust Fund Upon Liquidation of All Investments or upon
Surrender of Certificates.
(a) The respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Master Servicer to make payments to
the Certificateholders as set forth in Section 7.02), shall terminate on the earliest of (i) the final
payment or other liquidation of the last Investment remaining in the Trust Fund and the
disposition of all REO Property or REO Other Collateral or (ii) the surrender of the Certificates
in exchange for the property relating to the Trust Fund in accordance with Section 7.01 (b);
provided, however, that in no event shall the Trust Fund created continue beyond the
expiration of 21 years from the death of the last survivor of -the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James's, living on the date
hereof.
(b) The HoldeIS of 100% of the Percentage Interests in the Certificates may surrender
the Certificates representing such 100% Percentage Interest in the Trust Fimd in exchange for all
of the Investments (and related REO Properties and REO Other Collateral) and other properties
. in the Trust Fund (subject to Section 7.0 1 (c. If such Holders elect to exercise such exchange,
shall no later than five (5) days prior to the date of such exchange (the "Exchange Date'')
deliver written notice to the Trustee and the Master Servicer, which shall specify the allocation
of the Investments among the Holders if there is more than one Holder. Upon exercise of such
exchange, the HolderS shall surrender the Certificates to the Certificate Registrar for cancellation
and the corpus of the TruSt Fund shall be transferred to the Holders as so specified. .
(c) Prior to the transfer of the Trust Fund to the Holder of 100% of the Percentage
Interests in the Certificates. in accordance with Section 7.0 1 (b), the Master St"n'icer, each
Servicer, the Trustee and the Custodian shall be reimbursed by the Trust Fund for any Servicing
Advances, accrued and unpaid Servicing Fees or other amounts that are payable or reimbursable
to such parties under this Agreement, the related Assigned Agreements or the related Custodial
Agreement.
Section 7.02 Procedure Upon Re4emption or Termination of Trust Fund.
(a) Notice of any tennination pursuant to the provisions of Section 7.01, specifying
the Distribution Date upon whic.h the final distributjon shall be made or the Exchange Date, as
applicable, shall be given prpmptIy by the Master Servicer by first class mail to the
Certificateholders mailed upon (x) receiving notice of the Exchange Date or (y) upon the finaI
payment or other liquidation of the last Investment, REO Property and REO Other Collateral in
the Trust Fund. Such notice shall (A) the Exchange Date or Distribution Date, as .
applicable, upon which :final distribution on the Certificates of all assets required to be
distributed to the Certificateholders pursuant to Section 7.0l(b) or Section 5.02, as applicable,
will be made presentation and surrender of the Certificates at the Certificate Registrar's
designated office, and (B) that with respect to any termination, the Record Date otherwise
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applicable to such Distribution Date is not applicable, distribution being made only upon
presentation and surrender of such Certificates at the office or agency of the Certificate Registrar
therein specified. The Master Servicer shall give such notice to the Trustee and the Certificate
Registrar at the time such notice is given to Holders of such Certificates. Upon the final payment
or other liquidation of the last Investment, REO Property and REO Other Collateral in the Trust
Fund, the duties of the Certificate Registrar with respect to the Certificates shall tenninate and
the Distribution Account and any other account or fund maintained with respect to the
Certificates shall be closed, subject to the Master Servicer's obligation hereunder to hold all
amounts payable to Certificateholders in trust without interest pending such payment.
(b) In the event that any of the affected Holders do not surrender their Certificates for
cancellation within three (3) months after the time specified in the written
notice, the Master Servicer shall .give a second written notice to the remaining Certificateholders
to surrender their Certificates for cancellation and receive the final distribution with respect
thereto. If within one. (1) year after the second notice any applicable Certificates shall not have
been surrendered for cancellation, the Master Servicer may take appropriate steps to contact the
remaining Certificateholders concerning surrender of such Certificates, and the cost thereof shaD
be paid out of the amounts distributable to such Holders. Ifwithin two (2) years after the second
notice any Certificates shall not have been surrendered for cancellation, the Master Servicer shall
deliver any remaining funds being held by it to the Controlling Party and the Controllirig Party
shall, subject to applicable state law relating to escheatment, hold all amounts distributable to
Stlch Holders for the benefit of such Holders. No interest shall accrue on any amount held by the
Master Servicer and not distributed to a Certificateholder due to such Certificateholder's failure
to surrender its Certificate(s) for payment of the final distribution thereon in accordance with this
Section 7.02(b).
(c) Any reasonable expenses by the Trustee or the Master Servicer in
connection with any redemption or termination or liquidation of the Trust Fund 9r a portion .
thereof shall be reimbursed from proceeds received from such liquidation of the Trust Fund.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01 Controlling Party Control; Limitation on Rights of Holders.
(a) The Controlling Party shall have the right to direct the management, operation
and activities of the Trust Fund by the Trustee and the Master Servicer in accordance with the
terms and provisions hereof Except with respect to any matter requiring the consent or approval
of the Certificateholders or Holders of a specified Percentage Interest of the Certificates, the
Trustee and the Master Servicer shall follow the directions of the Controlling party in connection
with any matter involving the management or disposition of the Investments and the ll;Se of
amounts on deposit in the Distribution Account, the Delayed Draw Account and the Custodial
Accounts, subject to the terms of this Agreement Each Holder aclmowledges and agrees, by its
acceptance of its Certificates, that: (i) the Controlling party may have special relationships and
interests that conflict with those of certain Holders; (li) the Controlling Party does not have any
duties or liability whatsoever to any Holder; and (iii) the Controlling Party shall have no liability
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whatsoever for having so acted, and no Holder may take any action whatsoever against the
Controlling Party or any director, officer, employee, agent or principal thereof for having so
acted . .
(b) T4e death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder's legal representatives or heirs
to claim an accounting or take any action or proceeding in any court for a partition or winding up
of this Trust Fund, nor otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. ExCept as otherwise expressly provided herein, no Certificateholder, solely by
virtue of its status as a Certificateholder, shall have any right to vote or in any manner otherwise
control the Master Servicer or 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 from time to time as
partners or members of an association, nor shall any Certificateholder be under any liability to
any third person by reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder, solely by virtue of its status as Certificateholder, shall have
any right by virtue or by availing 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, unless the
Controlling party shall have made written request upon the Trustee to institute such action, suit
or proeeeding in its own name as Trustee hereunder and., to the extent the' Trust Fund at such
time is insufficient for such purpose in the reasonable judgment of the Trustee, shall have offered
or the shall have offered to provide to the Trustee such reasonable indemnity
as it may require against the cost, expenses and liabilities to be incurred therein or thereby, and
the Trustee, for ten days after its receipt of such notice, request and, if applicable, offer of
indemnity, shall have neglected or refused to instibrte any such action,. suit or proceeding'and no
direction inconsistent with such written request has been given' to the Trustee during such ten-
. day period by such Controlling Party; it being understood and intended, and being 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 whatever by virtue or by
availing of any provision o( this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of. such Certificates, or to obtain or seek to obtain .prioritY 'over or
preference to any other such Holder, or to enforce any right this Agreement, except in the
manner herein provided and for the benefit of all Ceitificateholders. For the protection and
enforcement of the provisions of this Section 8.01(e), each and every Certificateholder and
Trustee shall be entitled to such as can be given either at law or in equity.
Section 8.02 Access to List of Holders.
. (a) If the Trustee is not acting as Gertificate Registrar, the Certificate Registrar will
furnish or cause to be furnished tc? the Trustee, within fifteen (IS) days after receipt by the
Certificate Registrar of a request by the Trustee in writing, a in such form as the Trustee may .
reasonably require, of the names and addresses of the Certificateholders as of the most recent
Record Date.
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(b) If any Holder (hereinafter referred to as an "Applicanf) applies in writing to the
Certificate Registrar, and such application states that the Applicant desires to communicate with
other Holders with respect to their rights under this Agreement or under the Certificates, then the
Certificate Registrar shall, within five (5) Business Days after the receipt of such application,
provide such Applicant with the most recent list of Certificateholders held by the Certificate
Registrar. The Certificate Registrar shall provide to the Master Servicer and the Paying Agent (i)
a copy of the initial Certificate Register (or a notice containing the equivalent information) as of
the Closing Date based on the initial registration instructions received from the Depositor at
closing, (ii) promptly after each change to the Certificate Register, an updated copy of the
Certificate Register (or a notice containing the equivalent infonnation) and (iii) on the last
Business Day of each calendar quarter, commencing with the quarter ending in September 2008,
an copy of the current Certificate Register whether or not any change has. been made since the
last copy or updated copy (or notice) was provided.
. .
(c) Every Ho.lder by receiving and holding a Certificate, agrees with the Depositor,
the Master Servicer, the Certificate Registrar and the Trustee that none of the Depositor, the
Master Servicer, the Certificate Registrar nor the Trustee shall be held accountable by reason of
the disclosure of any such infonnation as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such infonnation was derived.
Section 8.03 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by . this Agreement to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instrwnents are delivered to the
Trustee and the Controlling Party and, where expressly required herein, to the Master Servicer.
Such instrument or mstruments (as the action embodies therein and evidenced thereby) are
herein sometimes referred to as an "Acr' of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agents shall be
sufficient for any pwpose of this Agreement and conclusive in favor of the Trustee and the
Master Servicer, if D1Jlde iri the manner provided in tJUs Section. Each of the Trustee and the
Master Servicer shall promptly notify the others of receip.t of any such instrument by" it; and shall
promptly forward a copy of such instrument to the otherS and the Controlling Party. .
(b) The fact and date of the execution by any Person pf any such instrument or
writing may be proved by the affidavit of a witness of such execution or by the certificate of any
notary public or other 'officer authorized by law to take acknowledgments or deeds, certifying
that the individual signing such instrument or writing acknowledged to .him. the execution
thereof. Whenever such execution is by an officer of a corporation or a member of a partnership
on behalf of such corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
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(c) The ownership of Certificates (whether or not such Certificates shall be overdue
and notwithstanding any notation of ownership or other writing thereon made by anyone other
than the Trustee) shall proved by the Certificate Register. and none of the Trustee. the Master
Servicer. or the Depositor shall be affected by any notice to the contrary.
(d) Any request, demand, authorization. direction, notice, consent, waiver or other.
action by the Holder of any Certificate shall bind every future Holder of the same Certificate and
the Holder of every Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereot: in respect of anything done, omitted or suffered to be done by the
Trustee or the Master Servicer in reliance thereon, whether or not notation of such action is made
upon such Certificate.
Section 8.04 Sale of the Investments by the
Upon receipt by the Master Servicer of a Notice of Sale from the Controlling Party (a
copy of which shall be provided by the Master Servicer to the Trustee) and the deposit in the
Distribution Account of the Purchase Price set forth in such Notice of Sale within the time period
specified in such notice, the Master Servicer shall provide written certification of deposit to
the Trustee and the Trustee, upon receipt of such certification, shall release or cause the
Custodian to release to the purchaser identified in such Notice of Sale, the related Investment
File and shall execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or wananties, as either party shall :furnish to it and as shall be
necessary to vest in such party any Investment released pursuant hereto and the Trustee, or its
designee, shall have no further responsibility with regard to such Investment File, except that, at
the request of the Controlling Party, the Trustee shall assign any obligation ot: or representations
or warranties made by, the Depositor under Sections 2.01, 2.03 and with respect to such
Investments and shall make a representatic;m solely on behalf of the Trust Fund (for which the
Trustee shall have no liability in its individual capacity) that the Trust Fund is the lawful owner
of such Investments with the full right to transfer such Investments free from any and all claims
and whatsoever (it being understood that the Trustee shall have no responsibility
for determining the sufficiency of such assignment for its intended purpose). The Master
Servicer will provide reasonable cooperation in connection with the transfer of servicing to
purchaser of an Investment (or its designated successor servicer). If pursuant.to the foregoing
provisions such purchaser purchases a Mortgage LoiUi is a MERs Mortgage Loan, the
SelVicer shall cause MERS to designate on the MERS. System such purChaser as the
beneficial holder of such MERS Mortgage Loan. ...
In the event of a.sale of an Investment pursuant to this Section 8.04, the Master Servicer
shall be entitled to the Make-Whole Payment required under the Servicing Rights Purchase
Agreement with respect to such Investment, payable from the proceeds of such sale or from
amounts on deposit in the Account. .
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ARTICLE IX
CONCERNING THE MASTER SERVICER
Section 9.01 Assumption of Master Servicing by Trustee.
(a) In the event the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default under this Agreement). the Trustee shall
thereupon assume all of the rights and obligations of such Master Servicer hereunder and under
each Assigned Agreement entered into with respect to Invesbnents unless and until the
Controlling Party has a successor Master Servicer. The Trustee or any successor
. master servicer appointed by the Controlling Party shall be deemed to have assumed all of the
Master Servicer's interest herein and therein to the same extent as if each ASsigned Agreement
had been assigned to the assuming party, .except that the Master Servicer shall not tIiereby be
relieved of any liability or obligations of the Master Servicer hereunder or under each Assigned
Agreement accruing prior to its replacement as Master Servicer, and shall be liable to the
Trustee. and hereby agrees to indemnify and hold hannless the Trustee from and against all
costs, damages, expenses and liabilities (including reasonable attorneys' fees) incurred by the
Trustee as a result of such liability or obligations of the Master Servicer and in connection with
the Trustee's assumption (but not its performance, except to the extent that costs or liability of
the Tl1lStee are created or increased as a result of negJigent or wrongful acts or omissions of the
Master Servicer prior to its replacement as Master Servicer) of the Master Servicer's obligations,
duties or responsibilities thereunder .
. (b) The Master Servicer that has been terminated shall, upon request of the Trustee
but at the expense of such Master Servicer, deliver to the assuming party all documents and
records relating to each Assigned Agreement, this Agreement and the related Investments and an
accounting of amounts collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of each Assigned Agreement and this Agreement to the assuming
party.
Section 9.02 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor and
Trustee, for the benefit of the Certificateholders, as of the Closing Date, that:
(i) it is validly existing and in good standing under the laws of the United
States of America as a national banking association,' an4 as Master Servicer has full
power and authority to transact any and al1 business contemplated by this Agreement and
to execute, deliver and comply with its obligations under the tenns of this Agreement, the
execution, delivery and of which have been duly authorized by all Decessary
corporate action on the part of the Master Servicer;
(Ii) the execution and delivery of this Agreement by the Master Servicer and
its performance and compliance with the terms of this Agreement will not (A) violate the
Master Servicer's charter or bylaws, (B) violate any law or or any
administrative decree or order to which it is subject or (C) constitute a default (or an
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event which, with notice or lapse of time, or both, would constitute a default) under, or
result in the breach of; any material contract, agreement or other instrument to which the
Master Servicer is a party or by which it is bound or to which any ofits assets are subject,
which violation, default or breach would materially and adversely affect the Master
Servicer's ability to perform its obJigations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization, execution and
delivery hereof by the other respective parties hereto, a legal, valid and binding
obligation of the Master Servicer, enforceable against it in accordance with the terms
hereof, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of creditors' rights
in general, and by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order or decree of
any court or any order or regulation of any federal, state, municipal or governmental
agency to the extent that any such default would materially and adversely affect its
performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement or
ins1rument or subject to any charter provision, bylaw or any other corporate restriction or
any judgment, order, writ, injunction, decree, law or regulation that may materially and
adversely affect its ability as Master Servicer to perform its obligations under this
Agreement or that requires the consent of any third person to the execution of this
Agreement or the performance by the Master Scrvicer of its obligations under this
Agreement;
(vi) no litigation is or, to the best of the Master Servicer's knowledge,
threatened against the Master Servicer which would prohibit its entering into this
Agreement or performing its under this Agreement;
(vii) no consent, approval, authorization or order of any court or governmental
agency or body or any Person is required for the execution, delivery and performance by
the Master Servicer of or complianCe by the Master Servicer with this Agreement or the
consnmmation of the transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders (If any) as have been obtained; and
(viii) the consnmmation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Master Servicer.
(b) It is understood and agreed that the representations and warranties set forth in this
Section 9.02 shall survive the execution and delivery of this Agreement. The Master Servicer
shall indemnify the Depositor, the Controlling Party, the Operating Adviser, the
Certificateholders and the Trustee and hold them harmless against any loss, damages, penalties,
:fines, forfeitures, legal fees and related costs, judgments, and other costs and expenses resulting
from any demand, defense or assertion based on or grounded upon, or resulting "from, a
material breach of the Master Servicer's representations and warranties contained in Section
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9.02(a). It is understood and agreed that the enforcement of the obligation of the Master Servicer
set forth in this Section 9.02(b) to indemnify the Depositor, the Controlling Party, the Operating
Adviser, the Certificateholders and the Trustee as provided in this Section constitutes the sole
. remedy (other than as set forth in Section 6.14) of the Depositor, the Controlling Party, the
Operating Adviser, the Certificateholders and the Trustee, respecting a breach of the foregoing
representations and warranties. Such indemnification shall survive any temrination of the Master
Servicer as Master Servicer hereWlder, and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or arising out of the breach of
any representations and warranties made in this Section shall accrue upon discovery of such
breach by the Controlling Party (or Operating Adviser) or the Trustee and notice thereof by any
one of such parties to the other.
Section 9.03 Compensation to the Master Servicer.
(a) As compensation for its duties hereunder, the Master Servicer shall be entitled to
any net earnings on Pennitted Investments as specified in Section 4.01 (e). The Master Servicer
shall be required to pay all expenses incurred by. it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this Agreemenl
The Master Servicer shall be entitled to receive: (x) the Applicable Shared Portion of
assumption fees, modification fees, extension fees, consent fees, release fees, waiver fees and
eam-out fees or other similar fees (excluding Prepayment Premiums and application and
processing fees), in each case to the extent actually collected with respect to any Investments and
paid in connection with a consent, approval or other action that the Master Servicer is not
pennitted to take in the absence of the consent or approval (or deemed consent or approval) of
the Controlling Party under other provisions of this Agreement; and (y) 100% of modification
fees, fees, release fees, waiver fees and eam-out fees or other similar fees (excluding.
Premiums a:rut application and processing fees), in each case to the extent actually
collected with respect to Investments and paid in connection with a consent, approval or other
action that the Master Servicer is permitted to take in the absence of the consent or approval (or
deemed consent or approval) of the Controlling Party under the other provisions of this
Agreement. For purposes of clause (x) in the preceding sentence, the "Applicable Shared
Portion" means (1) if a Primary Servicer not entitled to any portion of the fees referred to in
clause (x), 50% of fees, and (2) if a Primary Servicer is entitled to a portion of the fees
referred to in clause (x), 50% of the portion of such fees to which such Primary Servicer is not
entitled.
(b) In addition, the Master Servicer (and the Trustee in relation to Section 9.01(a)
hereto) shall be entitled to reimbursement from the Distribution Account for all reasonable
expenses, disbursements and advances incurred or made by the Master Servicer (and the Trustee
in relation to Section 9.01(a) hereto) in connection with the performance of its duties hereunder
and under the Assigned Agreement (mcluding the reasonable compensation and the expenses and
disbursements of its agents and to the extent not otherwise reimbursed pursuant to this
Agreement, except any such expense, disbursement or advance as may be attributable to its
willful misfeasance, fraud, bad filith or negligence; provided, that the Master Servicer shall
. not be entitled to reimbursement for (1) allocable overhead, such as costs for office space, office
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I ,
. ~ I I
equipment, supplies and related expenseS, employee salaries and related expenses and similar
internal costs and expenses, (2) any expense or liability specifically required to be borne by it
pursuant to the terms hereof or (3) any loss, liability, claim or expense incwred by reason of any
breach on the part of the Master Servicer of its representations, warranties or covenants
contained herein or any willful misconduct, fraud, bad faith or negligence in the performance of,
or negligent disregard ot: its obligations and duties hereunder.
Section 9.04 Assignment or Delegation of Duties by the Master Servicer.
Except with the prior ~ t t e n consent of the Controlling Party, the Master Servicer shall
not assign or transfer 'any of its rights, benefits or privileges hereunder to any Qther Person, or
delegate to or subcontract with, or authorize or appoint any other Person to perfonn any of the
duties, covenants or obligations to be perfonned by the Master Servicer hereunder.
Section 9.05 Fidelity.
The Master Servicer, at its expense, shall maintain in effect a blanket fidelity bond and an
errors and omissions insurance policy, affording coverage with respect to all directors, officers,
employees and other Persons acting on' such Master Servicer's behalf, and covering errors and
omissions in the perfoimance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and amount generally
acceptable for entities serving as master servicer of commercial investments similar to the
Investments.
ARTICLE X
REPORTING REQUlREMENTS
Section 10.01 Annual Statements of Compliance.
(a) The Master Servicer shall deliver or otherwise make available (and the Master
Servicer shall cause any Servicing Function Participant to deliver or otherwise make available)
to the Trustee and the Controlling Parly on or before May 1 of each year, commencing in May
2009, an Officer's Certificate (an "Item 1123 Certification'') stating, as to the signer thereo( that
(A) a review of such party's activities during the preceding calendar year or portion thereof and
of such party's performance under this Agreement, or such other applicable agreement in the
case of a Servicing Function Participant, has been made under such officer's supervision and (B)
to the best of such officer's knowledge, based on such review, such party has fulfilled. all its
obligations Wider this Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, in all material respects throughout such year or portion thereo( or, ifthere
~ ~ n a failure to fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereot: Promptly after receipt of each
such Item 1123 Certification, the Controlling Party shall review such Item 1123 Certification
and, if applicable, consult with each such party, as applicable, as to the nature of any failures by
such party, in the fulfillment of any of such pcJrty's obligations hereunder or, in the case of a
Servicing Function Participant, under such other applicable agreemenl The Master Servicer
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shall include all Item 1123 Certifications received by it from each Servicing Function Participant
with its own Item 1123 Certification to be submitted pursuant to this section.
(b) In the event the Master' Servicer or any Servicing Function Participant is
tenninated or resigns pursuant to the terms of this Agreement, or any applicable agreement, as
the may be, such party shall provide an Item 1123 Certification pursuant to this Section
10.01 with respect to the period of time it was subject to this Agreement or any applicable
agreement, as the case may be. .
(c) The Master Servicer shall enforce any obligation of any Servicer, to the extent set
forth in .the related Assigned Agreement, to deliver to the Master Servicer an Item I i23
Certificate as may be required pursuant to the related Assigned Agreement The Master Servicer
shall include such Item 1123 Certificate with its own Item 1123 Certificate to be submitted to the
Trustee and the Controlling Party pursuant to this Section.
'Section 10.02 Annual Assessments of Compliance.
By May 15 of each year, commencing in May 2009, the Master Servicer, at its own
expense, shall furnish or otherwise make .available, and shall cause any Servicing Function
Participant to furnish or otherwise make available, eaclr at its own expense, to the Controlling
Party, a report on an assessment of compliance with the Relevant Servicing Criteria (an
"Assessment of Compliance") that contains (A) a statement by such party of its responsibility for
assessing compliance with the applicable RelevaoJ Servicing Criteria, (B) a statement that such
party used the applicable ReleVant Servicing Criteria to assess compliance with the applicable
Relevant Servicing Criteria, (C) such party's assessment of compliance with the applicable
Relevant Servicing Criteria as of and for the previous calendar year, including, if there has been
any material instance of noncompliance with the applicable Relevant Servicing Criteria, a
discussion of each such failure and the J;lature and status thereof, and (D) a statement a
registered public accounting firm has issued an Accountant's Attestation on such party's
Assessment of Compliance with the applicable Relevant Servicing Criteria as of and for such
.
When the Master Servicer submits its Assessment of Compliance to the Controlling
Party; the Master Servicer shall at such time inclUde the Assessments of Compliance (and
Accountant's Attestation) of each Servicing Function Participant:
The Master Servicer shall enforce any obligation of the .Primary Servicers, to the extent .
set forth in the related Assigned Agreements, to deliver to the Master Servicer an Assessment of
Compliance within the time frame set forth in, and in such form and substance as may be
required pursuant to, the related Assigned Agreement
After receipt of each Assessment of Compliance, the Controlling Party may review each
. such report and, jf applicable, shall be entitled to' consult with the Master Servicer and any
Servicing Function Participant engaged by such parties as to the nature of any material instance
of noncompliance with the Relevant Servicing Criteria by each such party.
In the event the Master Servicer or any Servicing Function Participant is terminated or
resigns pursuant to the terms of this or any agreement, as the case may be,
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such party shall provide an Assessment of Compliance pursuant to this Section 10.02 with
respect to the period of time it was subject to this Agreement or any applicable sub-servicing
agreement, as the case may be.
Section 10.03 Accountant's Attestation.
By April 15 of each year, commencing in 2009, the Master Servicer shall cause, and shall
cause any Servicing Function Participant to cause, each at its own expense, a registered public
accounting firm (which may also render other services to the Master Servicer or such other
Servicing Function Participants, as the may be) and that is a member of the American
Institute of Certified Public Accountants to furnish a report (the "Accountant's Attestation") to
the Controlling Party, to the effect that (i) it has obtained a representation regarding certain
matters from the management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (ii) qn the basis of an examination conducted
by such finn in accordance. standaids for attestation engagements issued or adopted by the
PCAOB, it is expressing an opinion as to whether such party's Assessment of Compliance was
fairly stated in all material respects, or it cannot express an overall opinion regarding such
party's assessment of compliance with the Relevant Servicing Criteria. In the event that 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.
After receipt of such Accountant's Attestations from the Master Servicer or any Servicing
Function Participant the Controlling Party may review the report and, shall be entitled to, consult
with such parties as to the nature of any by such parties, in the fulfillment of any of each
such party's obligations or under any other applicable agreement
. In th.e event the Master Servicer or any Servicing. Function Participant is terminated or
resigns pursuant to the terms of this Agreement, or any applicable agreement, as the case may be,
such party shall provide an Accountant's Attestation pursuant to this Section 10.03 with respeCt
to the period of time it was subject to this Agreement or any applicable agreement, as the case
maybe.
The Master Servicer shall enforce any obligation of the Servicers, to the extent set forth
in the related Assigned Agreement, to deliver to the Master Servicer an attestation as may be
required pursuant to the related Assigned Agreement The Master Servicer shall include each
such attestation with its own Accountant's Attestation to be submitted to the Controlling Party
pursuant tQ this Section 10.03. .
Section 10.04 Certain Information Not Required.
The obligations of the Master Servicer under this Article X are subject in all respects to
the provisions of this Secti9n 10.04. In no event shall the Master Servicer be responsible to
include or cause the' inclusion of in any statement contemplated by Section 10.01, any
asseSsment contemplated by Section 10.02 or any attesta1;ion contemplated by Section 10.03 or
otherwise pursuant to this Article X, any statement, assessment or attestation of any Person with
respect to any Relevant Servicing Criteria for which the Master Servicer is not responsible and
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with respect to which the Master Servicer is unable, after reasonable effort, to obtain such
statement, assessment, attestation or information because the Master Servicer is not empowered
under the related Invesbnent Documents to enforce the obligation of another Person to provide
such statement, assessment, attestation or infonnation; provided that the Master Servicer will
not be required to attempt to obtain any such statement, assessment, attestation or infonnation for
any Mezzanine Loan that is not a Serviced Mezzanine Loan. .
ARTICLE XI
TIlE DEPOSITOR. TIlE MASTER SERVICER AND THE SPECIAL SERVICER
Section 11.01 Liability of the Depositor, the Master Servicer and the Special Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be liable in accordance
herewith only to the extent of the respective obligations specifically imposed upon and
undertaken by the Depositor, the Master Servicer and the Special Servicer herein.
Section 11.02 Merger, Consolidation or Conversion of the Dewsitor, the Master
. Servicer or the Special Servicer.
(a) Subject to the following paragraph, the Depositor, the Master Servicer and the
Special Servicer each will keep in full effect its existence, rights and fianchises as a corporation
or other business organization under the laws of the jwisdiction of its organization, and each will
obtaih and preserve its qualification to do business as a foreign coIporation or otherwise 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 Investments and to 'perform its
duties under this Agreement
(b) The Depositor, the Master Servicer the Special Servicer' each may be merged
or consolidated with or into any Person, or transfer all or substantially alJ of its assets (which, as
to the Master Servicer and the Special Servicer, may be limited to all or sub$ntially all of its
assets reJating to the business of mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the Master Servicer or
the' Special Servicer shall be a party, or any Person succeeding to, the business of the Depositor,
the Master Servicer or the Special Servicer, shall be the successor of the Depositor, the Master
Servicer or the Special Servicer, as the case may be, hereunder, without the execution or filing of
any paper or any further acron the part of any of the parties hereto; provided, however, that no
successor or surviving Person shall succeed to the rights of the Depositor, the Master Servicer or
the Special Servicer unless (i) the Depositor, the Master Servicer or the Special
Servicer, as applicable, has obtained the prior written consent of Controlling Party and (u)
such successor or surviving Person the applicable representations and warranties set forth
in Section 2.03 (in the case of a successor or surviving Person to the Depositor) or Section 9.02
(in the case of a successor or surviving Person to the Master Servicer or Special Servicer); For
the avoidance of doubt, the consent of the Controlling Party referred to in this Section 11.02(b)
relates solely to whether the successor will be able to succeed as the Master Servicer or Special
Servicer hereunder and does not confer any right of the Controlling Party or any other Person to
consent to the merger, consolidation or asset from which the successor resulted. If the
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Controlling Party does not consent to the successor assuming the responsibilities of the Master
Servicer or Special Servicer hereunder, the Master Servicer or Special Servicer, as applicable,
will cooperate at such party's expense to accomplish the transfer of servicing to the successor
Master Servicer or Special Servicer appointed by the Controlling Party but the outgoing Master
Servicer or Special Servicer shall not be responsible to pay any expenses incurred by the
successor Master Servicer or Special Servicer to assume such role.
Section 11.03 Limitation on Liability of the Depositor, the Master Servicer, the Special
Servicer and Others.
(a) None of the Master SerVicer, the Special Servicer or any director, officer,
employee or agent of any of the foregoing shall be under any liability to the Trust Fund, the
Certificateholders or any holder of a Companion Loan (in the case of a Companion Loan) for any
action taken, or not taken, in good faith pursuant to this Agreement, or for errors fu judgment;
provided, however, this provision shall not protect the Master Servicer, the Special Servicer or
any such other Person against any breach of a representation or warranty made herein, or against
any expense or liability specifically req':Jired to be bome thereby pursuant to the tellllS hereof, or
against any liability that would otherwise be imposed by reason of willful misfeasance, fraud,
bad faith or negligencein the perfonnance of obligations or duties hereunder, or by reason of
. negligent 'or reckless disregard of such obligations an duties. The Master Servicer, the Special
Servicer and any director, manager, member, officer, employee or agent (including Sub-
Servicers and Primary Servicers) of any of the foregoing may rely in good faith on any document
of any kind that, prima facie, is properly executed and submitted by any Person respecting .any
matters arising hereunder. The Master Servicer, the Special Servicer and any director, manager,
member, officer, employee or agent-(including Sub-8ervicers and Primary Servicers) of any of
the foregoing shall be indemnified and held harmless by the Trust Fund against any loss, liability
or expense, including reasonable attorneys' fees, expenses of counsel and expenses of litigation,
incuaed in connection with any claims or legal action relating to this Agreement, the Certificates
or any asset of the Trust Fund, other than any loss, liability or expense: (i) specifically required
to be borne by such Person pursuant to the terms hereof; or (ii) that was incurred in connection
with claims against such party resulting from (A) any breach of a representation or warranty
IIiade herein by such PersoIla (8) willful misfeasance, fraud, bad fiUth, recklessness or negligence
in the performance of obligations or duties. hereunder by such Person, or from negligent :.or
reckless disregard. of such obligatioIis or duties, or (C) any violation' by such Person of any state
or federal securities law. With respect to any such claim, (A) such Person shall have given the
Certificateholders, the Controlling Party and the Operating Adviser written notice thereof
promptly after such P e ~ n shall have knowledge thereot: except that "failure to give the
Certificateholders, the Controlling party and the Operating Adviser such notice shall not affect
. such Person's rights to indemnification hereunder, and (B) notwithstanding anything to the
canttaty in this Section 11.03, the Trust Fund shall.not be liable for settlement of any such claim
by such Person entered into without the prior written consent of the Controlling Party, which
consent shall not be unreas.onably withheld or delayed
(b) The Depositor or any director, officer, employee or agent thereof shall be liable
only to the extent of the obligations specifically imposed upon and undertaken by the Depositor
under this Agreement The Depositor and any director, officer, employee or agent thereof may
rely in good faitli on any document of any kind that, prima facie, is properly executed and
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submitted by any Person respecting any matters arising hereunder. The Depositor (solely in its
capacity as Depositor under this Agreement), and any director, officer, employee or agent of the
Depositor shall be indemnified and held hannJess by the Trust Fund against any loss, liability or
expense,. including reasonable attorneys' fees, expenses of counsel and expenses of litigation,
incurred in connection with any claims or legal action relating to this Agreement, the Certificates
or any asset of the Trust Fund, other than any loss, liability or expense (i) specifically required to
be borne by the Depositor pursuant to the tenns hereof, or (ii) that was incurred in connection
with daims against the Depositor resulting from (A) any breach by the Depositor of a
representation or warranty or covenant herein or any other agreement entered into by the
Depositor in connection with the transactions contemplated hereby, or any breach by the
Depositor of any other obligation specifically imposed under this Agreement or in such other
agreement, (B) willful misfeasance, bad faith, recklessness, fraud, or negligence in the
perfonnance of obligations or duties hereunder or under any other agreement entered into by the
Depositor in connection with transactions contemplated hereby, or from negligent or reckless
disregard of such obligations or duties, (C) any violation by the Depositor of any state or federal
securities law, (0) any action or omission by any Person prior to the Closing Date, or (E) or
relating to the Depositor's transfer of its right, title and interest in and to the Trust Fund to the
Trustee, or the or transfer of the Certificate to Maiden Lane LLC, other than any claims
of securities law violations by Certificateholders. With respect to any such claim, (A) the
Depositor shall have given the Certificateholders, the Controlling Party and the Operating
Adviser written notice thereof promptly after the Depositor shall have knowledge thereof, except
that failure to givethe Certificateholders, the Controlling Party and the Operating Adviser such
notice shall not affect the Depositor's rights to indemnification hereunder, and (B)
notwithstanding anything to the contrary in this Section 11.03, the Trust Fund shall not be liable
for settlement of any such claim by the Depositor entered into without the prior written consent
of the Controlling Party, which consent shall not be unreasonably withheld or delayed.
Notwithstan<Img the foregoing, but subject to the preceding sentence, the Depositor shaU be
indemnified and held hannless by the Trust Fund against any any loss, liability or expense,
including reasonable attorneys' fees, expenses of counsel and expenses of litigati9n, incurred in
connection with any claims or legal action arising out of any action or refraining from action by
the Depositor in respect of any Investment, provided that such action or reftaining from action
occurred during the period from March 14,2008 to the Closing Date at the direction or with the
affirmative consent of BlackRock. Financial Management,
(c) The Controlling Party and ' the Operating Adviser and their respective directors,
officers, employees and agents shall be under no . liability to the Trust Fund, the
Certificateholders or any holder of a Companion Loan (in the case of a Companion Loan) for any
action taken, or not taken, in good faith pursuant to this agreement, and shall be indemnified and
held harmless by the Trust Fund for any loss (including, but not be limited to any loss, liability or
expense under any environmental law), liability' or expense, including reasonable attorneys' fees,
expenses of counsel and expenses of litigation, incurred without negligence, bad faith or willful
misconduct on their part, arising out of, or in connection with, the exercise of their rights or
powers, or any failme to exercise their rights or powers, under this Agreement, any agreement
entered into in connection with this Agreement (including any Acknowledgements or any
Custodial Agreement), or any Investment Documents, other than any loss, liability or expense
that was incwred in connection with claims against such Person resulting from any violation by
such Person of any state or federal securities law, provided, however, that: (i) with rt?spect to
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.:-.
any such claim by the Operating Adviser (including any claims by its directors, officers,
employees and agents), the Operating Adviser shall have given the Trustee and the Controlling
Party written notice thereof promptly after the Operating Adviser shall have knowledge .thereof,
except that failure to give the Trustee and the Controlling Party such notice shan not affect the
Operating Adviser's rights to indemnification hereunder, and (ii) notwithstanding anything to the
contrary in this Section 11.03, the Trust Fund shall not be liable for settlement of any such claim
by the Operating Adviser entered into without the prior consent of the Controlling Party, which
consent shall not be unreasonably withheld or delayed.
(d) The provisions of this Section 11.03 shall survive any termination of this
Agreement and the resignation, change or removal of the Controlling Party, the Operating
Adviser, the Master Servicer, or the Special Servicer.
(e) None of the Depositor, the Master Servicer or the Special be under
any obligation to appear in, prosecute or defend any legal action uitless such .action is related to
its respective duties under this Agreement and in its opinion does not involve it in any ultimate
expense or liability; provided, however, the Controlling Party 'in its discretion, or the Master
Servicer or the Special Servicer at the Controlling Party's request or with the Controlling Party's
consent, may undertake any such action that the Controlling Party may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and duties of the parties
hereto and the interests of the Certificateholders. In such event, the legal expenses and costs of
such action, and any liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust Fund, and the Controlling Party, the Master Servicer and the Special Servicer each shall be
entitled to the direct payment of such reasonable expenses or to be reimbursed therefore from the
Distnoution Account as provided in Section 4.01 (d).
(f) The Trust Fund, the Trustee, the Depositor, the Controlling Party, the Operating
Adviser and the Certificateholders and any director, manager, member, officer" employee or
agent of any of the foregoing s.hall be indemnified and held harmless by the Master Servicer or
the Special Servicer, as applicable, against any loss, liability or expense, including reasonable
attorneys' fees, expenseS of counsel and expenses of litigation, incurred in connection -with any
claims or legal action resulting from (A) any breach of a or W1lII'8Dty made herein
by the Master Servicer or the Special Servicer, as applicable, (B) willful misfeasance, bad faith,
recklessness or negligence in the perfonnance of obligations or, duties hereunder by the
Master Servicer or the Special Servicer, as applicable, or from negligent or reckless disregard of
such obligations or duties, or (C) any violation by the Master Servicer or the Special Servicer, as
applicable, of any state or federal securities law.
Notwithstanding the foregoing provisions of this Section 11.03(b), (x) no Person who
received an indemnity payment from the Trust Fund as a result of an indemnity payment made
by the Master Servicer or the Special' Servicer, as applicable, to the Trust Fund pursuant to
this paragraph (b) shall be entitled to any duplicate recovery from the Master Servicer or the
Special Servicer, as applicable, pursuant to this clause' (b), and (y) the Trust Fund sbaU not
be entitled to any duplicate recovery from the Master Servicer or Special Servicer, as applicable,
in respect of any claim. for an inden:inity payment from the Trust Fund made by any Person if
such indemnity payment was made directly to such Person by the Master Servicer or the
Special Servicer, as applicable, pursuant to this clause (b).
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Section 11.04 Master Servicer and Special Servicer Not to Resign.
Neither the Master Servicer nor the Special Servicer shall be permitted to resign from the
obligations and duties hereby imposed on it, except (i) upon the appointment of, and the
acceptance of such appointment by, a successor thereto that is reasonably acceptable to the
Trustee and acceptable to the Controlling Party in its sole discretion or (ii) upon determination
that such obligations and duties hereunder are no longer permissible under applicable law or are
in material conflict by reason of applicable law with any other activities carried on by it, the
other activities of the Master Servicer or Special Servicer, as the case may be, so causing such a
conflict being of a type and nature carried on by the Master Servicer or Special Servicer,. as the
case may be, at the date of this Agreement. Any such detennination of the nature described in
clause (ii) of the preceding sentence pennitting the resignation of the Master Servicer or the
Special Servicer, as the case may be, shall be evidenced by an Opinion of Counsel to such effect,
which shall be rendered by Independent be addressed and delivered to the Trustee and
the Controlling Party and be paid for by the resigning party. No such resignation for either
reason shall become effective until the Trustee or other successor shall have assumed the
responsibilities and obligations of the resigning party hereunder. All costs and expenses of the
Trustee and the Trust Fund (including, without limitation, any costs or expenses of any party
hereto reimbursable out of the Trust Fund) in connection with any such resignation (mcluding,
without limitation, any requisite transfer of servicing) shall be paid for, as incurred, by the
resigning party
Section 11.05 Rights of the Controlling Party and the Trustee in Respect of the Master
Servicer the Special Servicer.
(a) The Master Servicer and the Special Servicer each . shall afford the Controlling
Party and the Trustee, upon reasonable notice, during nonna! business hours access to all records
maintained by the Master Servicer or the Special Servicer, as the case may be, in respect of the
Investments and its rights and obligations hereunder and access to such of its officers .as are
responsible for such obligations. Upon reasonable request, the Master Servicer and the Special
Servicer each shall furnish the Controlling Party and the Trustee with its most recent financial
statements, or in the case of the Special Servicer, publicly available financial statements of its
corporate parent, and such other publicly available information directly related to the servicing of
the Investments or to its ability to perform its obligations hereunder as it possesses, and that it is
not prohibited by law or, to the extent applicable, binding obligations to third parties with respect
to confidentiality from disclosing, regar<Ung its business, affairs, property and condition,
financial or otherwise; provided that none of the Controlling Party or the Trustee may disClose
the contents of any information that is not available publicly to non-affiliated third parties. (other
than their duly authorized representatives, which include without limitation attorneys and/or
accountants) unless the Controlling Party or the Trustee, as applicable, is required to do so under
applicable securities law or is compelled to do so as a matter oflaw. The Controlling Party may,
but is not obligated to, enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to perform, .any
defaulted obligation of the Master Servicer or the Special Servicer hereunder or, in connection
with a default thereby, exercise the rights of the Master Semcer or the Special Servicer
hereunder; provided. however, none of the Master Servicer or the Special Servicer shall be
96
(T1'W: N'YU!GAl.:7S6S66.19] 86000..00992 06flSI2008 06:44 Ploof
relieved of any of its obligations hereunder by virtue of such performance by the Controlling
Party or its designee. The Controlling . Party shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is not obligated to
supervise the performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
(b) Each of the Trustee, the Depositor, the Special Servicer, the Master Servicer and
the Paying Agent in all of its respective roles and capacities under this Agreement agree to keep
confidential all information provided to it by or on behalf of the Controlling Party, or any other
Person pursuant to or in connection with this Agreement; provided that nothing herein shall
prevent such party from disclosing any such information (a) to its employees, directors, agents,
attorneys, accountants and other professional advisors or those of any of its affiliates who are
directly involved in the transactions contemplated by this Agreement and who agree to keep such
information confidential on the terms set forth herein, (b) upon the request or demand of any
Governmental Authority, (c) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any requirement oflaw, (d) ifrequested or
required to do so in connection with any litigation or similar proceeding, (e) that has been
publicly disclosed other than by such party or its Affiliates in violation of this Section 11.05(b),
(f) if agreed by the Controlling Party in its sole discretion, to any other Person, (g) if reasonably
believed by such ~ to be necessary for the enforcement or performance of such party's rights
or duties under this Agreement or (h) that is otherwise permitted or required to be described or
reported pursuant to the terms of this Agreement; provided further, that, prior to any disclosure
of such informiltion pursuant to clauses (b) and (d) above, such party shall, if reasonably
practicable under the circwnstances, notify the Controlling Party of such proposed disclosure and
shall reasonably cooperate with the Controlling party in the eventthat the Controlling Party
requests such coopemtion of such party in connection With any Controlling Party request (to the
proposed recipient) for confidential treatment of the information.
Section 11.06 Survival
The indemnification provided for in this section shall survive the termination of
this Agreement or the termination of any party to this Agreement.
ARTICLBXll
MISCELLANEOUS PROVISIONS
. Section 12.01 Binding Nature of Agreement; A s s ~ e n t .
This Agreement shall be binding upon and inure to the benefit of the partieS hereto and
their respective successors and permitted assigns. In connection with the sale of an Investment
pursuant to .Section 8.04, the purchaser of any such Investment is a permitted assignee of the
rights and remedies of the Trustee under Article II hereof (other than Section 2.06).
97
(lPW: NYImAL:7S6S66.19}86000-00992 06I2SI2008 06:44 PM
Section 12.02 Entire Agreement.
This Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral or written, of
any nature whatsoever with respect to the subject matter hereof. The express teons hereof
control and supersede any course of perfonnance and/or usage of the trade inconsistent with any
of the tenns hereof.
Section 12.03 Amendment.
(a) This Agreement may (and, shall, at the direction of the Controlling party) be
amended, supplemented or otherwise modified from time to time by the Master Servicer and the
Trustee, without notice to or the consent of any of the Holders but with the prior written consent
of the Controlling party 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; provided, however, that no such amendment may reduce in any manner the
amount of, or delay the timing of, payments received on Investments which are required to be
distributed to the Certificates, without the consent of the Holder of such Certificates; provided.
further, that any amendment at the direction of the Controlling Party that has a material adverse
effect on the Trustee, the Depositor, the Master Servicer or the Special Servicer shall require the
consent of such party, which consent shall not be unreasonably withheld or delayed.
(b) Promptly after the execution of any such amendment, the Trustee shall furnish
. written notification of the substance of such amendment to the Controlling Party, each Holder
and the Depositor.
(c) It shall not be necessary for the consent of Holders under this Section 12.03 to
approve the particular fonn of any proposed amendment, but it shall be sufficient if such consent
shall approve the subst8nce thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Holders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(d) Notwithstanding anything to the ~ o n t r a r y in any Assigned Agreement, neither the
Trustee nor the Master Servicer shall consent to any amendment of any Assigned Agreement
. except upon the prior written direction of the Cont,rolling Party. The Controlling Party shall
nOtify the Master Servicer (or cauSe the Master Servicer to be notified) of any proposed
amendment to any Assigned Agreement that is presented for the Controlling Party's approval by
any Person other than the Master Servicer, and shall provide or cause to be provided to the
Master Servicer a copy of the executed finaI fOIll1 of any amendment to any Assigned Agreement
that the Master. Servicer does not itself sign as a party o ~ to acknowledge. The failure of the
Controlling Party to comply with the preceding sentence shall not affect the effectiveness of the
amendment, but the Master Servicer shall have no liability or responsibility to any Person under
this Agreement or otherwise in respect of any consequence of any amendment to any Assigned
Agreement as to which the ~ r Servicer has not received notice and a copy of the final
amendment by reason of such failure. With respect to any amendment that would expand the
98
:i.
duties and obligations, or reduce the compensation of, the Master Servicer, the Trustee shall not
consent to any such amendment without the prior written consent of the Master Servicer.
(e) The parties acknowledge and agree that, unless required by the Controlling Party,
it is not a condition to execution and delivery of any amendment that there be delivered to the
Trustee any opinion of counsel to the effect that such amendment will not jeopardize the status of
any portion of the Trust Fund which is a gnmtor trust, as a grantor trust under subpart E, part I of
subchapter J of chapter 1 of the Code and the Trustee shall have no responsibility to ensure that
any such amendment will not have such an effect.
SectioQ. 12.04 Provision of Information.
(a) For so long as any of the Certificates are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Master Servicer and the Trustee agree to
cooperate with each other to provide to any Certificateholders and to any prospective p u r c ~ e r
of Certificates designated by such Holder, upon the request of such Holder or prospective
purchaser, any information reasonably available to such party that is required to be provided to
such Holder or prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4) under
the Act Any reasonable, out-of-pocket expenses incurred by the Trustee or the Master Servicer
in providing such information shall be reimbursable from the Trust Fund.
Section 12.05 Governing Law.
TInS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITII THE
LAWS OF TIIE STATE OF NEW YORK, AND THE OBLIGA TIONS
p
RIGIITS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE D ~ D IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS
PRlNCIPLES APPLIED IN NEW YORK (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAWS).
Section 12.06 Notices.
All requests, demands, notices, authorizations, directions, consents, waivers and
communications hereunder shall be in writing and shall be deemed to have been duly given when
received by (a) in the case of the Depositor, Bear steams Commercial Mortgage, Inc., 383
Madison Avenue, New York, New York 10179, Attention: Joseph E. Geoghan, Facsimile No.
(212) 272-7047; with a copy to JPMorgan Chase Bank, N.A., Legal Department, 245 Park
Avenue, 12th Floor, New York, New York 10667, Attention: Bianca Russo, Facsimile No. (646)
534-6397; (b) in the case of the Master Servicer, BaDIe of America, N.A, Capital Markets
Servicing Group, 900 West Trade Street, Suite 650, Charlotte, North Carolina 28255, Attention:
Janice M. Smith,Facsimile No.: (704) 317-0781, with a copy to: (i) Bank of America Legal
Department, GCIB/CMBS, NC1"()07-20-01, 100 North Tryon Street, Charlotte, North Carolina
28255-0001, Attention: Paul Kurzeja, Esq., Facsimile No.: (704) 387-0922, (ii) Cadwalader,
Wickersham & Taft LLP, Attn: Henry A. LaBIllIl, Esq., 227 West Trade Street, 24th Floor,
Charlotte, North Carolina 28202, (iii) Bank of America, N.A, Capi1Bl Markets Servicing Group,
900 West Trade Street, Suite 650, NCI-026-06-01, Charlotte, North Carolina 28255-0001,
Attention: Sean D. Reilly, Facsimile N.o.: (704) 2274863, (iv) Bank of America, N.A., Capital
99
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Markets Servicing Group, 900 West Trade Street, Suite 650, NCI-026-06-01. Charlotte, North
Carolina 28255-0001, Attention: Michael Lumadue, Facsimile No.: (704) 317-0781. and (v)
Bank of America, N.A . Capital Markets Servicing Group, 900 West Trade, Street, Suite 650.
NCI-026-06-01, Charlotte, North Carolina 28255-0001, Attention: Joseph M Davis Facsimile
No.: (704) 317-0771; (c) in the case of the Controlling Party. Federal Reserve Bank of New
York, 33 Liberty Street, New York, New York, 10045, Attention: Joyce Hansen, Telephone No.
(212) 720-5024, Facsimile No. (212) 720-1?56 and Helen Mucciolo Facsimile No. (212) 720-
6767; (d) in the case of the Trustee. its Corporate Trust Office; and (e) in the case of the
Operating Adviser: the contacts listed in the notification letter delivered by the Controlling Party
pursuant to Section 4. 10, or as to each party such other address as may hereafter be furnished by
such party to the other parties .in writing. All demands. notices and communications to a party
hereunder shall be in writing and shall be deemed to have been duly given when delivered to
such party at the relevant address, facsimile number or electronic mail address set forth above or
at such other address, facsimile number or electronic mail address as such party may designate
from time to time by written notice in accordance with.this Section 12.06. .
Section 12.07 Severability of Provisions.
If anyone or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or
tenns 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 rights of the Holders thereof.
Section12.08 Indulgences; No Waivers.
Neither the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or
p8rtial exercise of any right; remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a waiver of such right,
remedy. power or privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing is signed by the party to have granted such waiver.
Section 12.09 Headings Not To Affect Interptetation.
The headings contained in this Agreement are for convenience of reference only, and
they shall not be used in the interpretation hereof.
Section 12.10 Benefits of
in this Agreement or in the Certificates, express or implied, shall give to any
Person, other than the parties to this Agreement and their successors hereunder, the Controlling
party and the Holders of the Certificates, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement, except to extent specified in Section 12.13. For
pmposes of this Agreement, the Controlling Party and its Operating Adviser shall be considered
third party beneficiaries to this Agreement entitled to all the rights and benefits afforded to the
100
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Controlling Party and the Operating Adviser herein as if each were a direct party to this
Agreement
Section 12.11 Conflicts.
To the extent that the tenns of this Agreement conflict with the terms of any Assigned
Agreement, the related Assigned Agreement shall govern.
Section 12.12 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, and all of which together shall constitute one and the same instrument
Section 12.13 No Petitions; Non-Recourse.
(a) The Trustee and the Master Servicer by entering into this Agreement, hereby
covenant and agree that they shall not at any time institute against the Depositor, or join in any
institution against the Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligations relating to this Agreement or any of the
documents entered into by the Depositor in connection with the transactions contemplated by
this Agreement.
. . (b) Notwithstanding any other provision of this Agreement, the Certificates and the
obligations of the Trust Fund under this Agreement are non-recourse obligations payable solely
from the Trust Fund in accordance with the terms of this Agreement To the extent such Trust
Fund is insufficient to satisfy the payments to any Person required hereunder, none of the
Depositor, the Trustee, the Master Servicer, the Controlling Party or the Certificateholders (or
any officer, director, employee, shareholder or incorporator thereot) shall have any liability for
such payments and any outstanding obligations shall be extinguished .and shall not revive. No
recOurse shall be had for the payment of any amount owing under this Agreement except to the
Trust Fund.
Section 12.14 Submission to Jurisdiction; Waiver of Process and Jury.
(a) Each Party hereto hereby iIrevocably and unconditionally:
(i) submits for itself and its property in any legal action or proceeding relating
to this Agreement, or for recognition and enforcement of any judgment in respect thereof:
to the exclusive jurisdiction of the courts of the United State;; for the Southern District of
New York, and appellate courts thereof, prOvided, to the extent such courts do not have
subject matte.r jurisdiction, the exclusive jurisdiction sball rest with the courts of the State
of New York located in the Borough of M a n b a ~ in the C i ~ of New York, and
appellate courts thereof;
(ii) conSents that any such action or proceeding may be brought only in such
comts and waives any objection that it may now or hereafter have to the venue of any
101
(TPW: NYLBGAL:7S6S66.19] 86000.00992 06I2SJ2008 06:44 PM
such action or proceeding in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any substantially
similar fOI1Il of mail). postage prepaid, to it at its address set forth in this Agreement or at
such other address of which the other parties hereto shall have been notified pursuant
thereto;
(iv) agrees that nothing herein shall affect the right to effect service of process
in any other manner pel1Ilitted by law or shaH limit the right to sue in any other
jurisdiction; .
(v) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdiction by suit on the judgment or in any
. other manner provided by law; and
(vi) waives trial by jury in any legal action relating to this Agreement and for
any counterclaim therein.
[REMAlNDER OF TIllS PAGE INTENTION ALL Y LEFT BLANK)
102
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I
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers hereunto duly authorized as of the day and year first above written.
BEAR STEARNS COMMERCIAL MORTGAGE,
INC.,
as Depositor
.

Name: . . #
Title: : .. . . ..
.... J 0". : ..
U.S. BANK NA nONAL ASSOCIATION,
as Trustee
By: ____________________ __
Name:
Title:
BANK OF AMERICA. N.A.,
as Master Servicer
By. ______________________ __
Name:
Title:
State of New York )
) sS.:
County of New York )
On the __ day of June 2008. bef<?re me. a notary public in and for the Slate of
New York. personally appeared MtiMeI A. forcUhJ\<,known to me who. being by me duly sworn,
did depose and say that he is t b ~ ~ i ~ 'bItfc+or of Bear Stearns Commercial Mortgage. Inc.,
one of the parties that executed the 1'OgJng instrument; and that he signed his name thereto by
order of the Board of Directors.
[Notarial Seal]
AlAINA FERRAlOU
NoCary Public. state of New YOl1o
No.OfFE6173332
Qualilled In Richmond County
Commission ElcpIres Aug. 27, 2011
I ..
IN WITNESS WHEREOF, the parties hereto have caused their names to.be signed hereto
by their respective officers hereunto duly authorized as of the day and year first above written.
BEAR STEARNS COMMERCIAL MORTGAGE,
INC.,
as Depositor
By. ________________
Name:
Title:
ASSOCIATION,
By.
Title: Vice President
BANK OF N.A.,
as Master Servicer
By: _______________ __
Name:
Title:
State of Minnesota )
} SS.:
County of RAMSEY }
On the )/.J day of June 2008, before me, a notary public in and for the State of
Maryland, personally appeared Shannon M. Rantzknown t6 me who, being by me duly
sworn, did depose and , say that s/he is the Vice President of U.S. Bank National
AssociatiOn one of the parties that executed the foregoing instrument; and that he signed his
name t h e r ~ to by order of the Board of Directors.
Q
: .' TIFFANY M. JEANSON
.JI Notary Public
Minnesota
My CornIftssDI ~ JanIary 31, 200iI
[Notarial Seal]
;
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by respective officers hereunto duly authorized as of the day and year first above written.
BEAR STEARNS COMMERCIAL MORTGAGE,
INC.,
as Depositor
By: ______________________ ___
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: ______________________ _
Name:
Title:
BANK OF AMERICA N.A.,
as Master S
//
I
By: --l,-i
N e rt
Managing Director
State of North Carolina )
) ss.:
County of Mecklenburg )
On of June 2008, before a notary public in and for the State of
North Carolina, personally known to me who, being by me duly
sworn, did depose and say thafJ11::.is a r. : of Bank of America, N.A. one of
the parties that executed the foregoing instrum t.
. ,
EXHIBIT A
[FORM OF CERTIFICATE]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT,). ANY RESALE OR TRANSFER OF THIS
CERTIFICATE WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE
MADE IN A TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS
OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN.
EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, NEITHER TInS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS TI-IE
TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO SECTION 4975 OF
THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF
SUCH A PLAN, OR .THAT IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, SUCH TRANSFEREE IS AN INSURANCE
COMPANY WInCH IS PURCHASING CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT' AS SUCH TERM IS DEFINED IN
SECTION V(e) OF ,PROIUBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-
,60',), AND THE PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED
UNDER SECTION I AND III OF PTCE 95.{iO OR AN OPINION OF COUNSEL IN
'ACCORDANCE WITH 1lIE PROVISIONS' OF THE AGREEMENT REFERRED TO
HEREIN. NOTWI1HSTANDING ANYfHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF TIllS CERTIFICATE TO OR ON BEHALF OF A PLAN
SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE wrrnour THE OPINION OF
COUNSEL SATISFACTORY TO THE CERTIFICATE REGISTRAR AND TIIE TRUSTEE
AS DESCRIBED ABOVE SHALL BE VOID AND 9F NO EFFECT.
A-I
[iPW: NYLEGAI.:1S6S66.191 ~ 06t'2S12OO8 06:44 PM
Certificate No.
Closing Date
Percentage Interest
Interest Rate N/A
MAIDEN LANE COMMERCIAL MORTGAGE-BACKED SECURITIES TRUST 2008-1
Certificates
evidencing a percentage interest in the distributions allocable to the Certificates with respect to a
Trust Fund consisting of commercial and multi-family mortgage loans and mezzanine loans (or
participation interests therein) (the "Investments").
BEAR STEARNS COMMERCIAL MORTGAGE, INC., as Depositor
Distributions in respect of this Certificate are payable as set forth in the Agreement. This
Certificate not evidence an obligation ot: or an interest in, and is not guaranteed by the
Depositor, the Master Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Investments are guaranteed or insured by any
governmental or instrumentality.
This certifies that is the registered owner of the Percentage
. Interest evidenced by this Certificate in certain distributions with respect to a Trust Fund
consisting primarily of the Investments deposited by Bear Steams Commercial Mortgage, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Trust and Master Servicing
Agreement dated as of the Closing Date specified above (the "Agreement'') among the
Depositor, Bank: of America, N.A., as master servicer (the "Master Servicer") and U.S. Bank
National Association, as trustee (the "Trustee',). To the extent not defined the capitalized
terms used herein have the meanings assigned in the Agreement.. This Certificate is issued .under .
and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by which sucp Holder is
bound.
Except as otherwise provided in the Agreement, no transfer of this Certificate shall be
made unless the Certificate Registrar, on behalf of the Trustee, shall have received either (i) a
. representation letter from the transferee of such Certificate, acceptable to and in form and
substance satisfactory to the Certificate Registrar and the Trustee, to the effect that such
transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code, nor a person acting on behalf of or investing plan assets of any such
plan, which representation letter shall not be an expense of the Trust Fund, the Certificate
Registrar, the Trustee, the Master Servicer or the Depositor, (ii) if such certificate has been the
subject of an ERISA QualifYing Underwriting and the purchaser is an insurance company, a
that the purchaser is an insurance company which is purchasing such Certificates
A-2
with funds contained in an "insurance company general account" (as such tenn is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60" and that the
purchase and holding of such Certificates are covered under Sections I and ill of PTCE 95-60, or
(iii) in the case of any such Certificate presented for registration in the name of a plan subject to
ERlSA or Section 4975 of the Code (or comparable provisions of any subsequent enactments),
or a trustee of any such plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Certificate Registrar and the Trustee to the effect that the purchase or
holding of such Certificate will not result in a prohibited transaction under Section 406 of ERlSA
or Section 4975 of the Code, will not result in the assets of the Trust Fund being deemed to be .
''plan assets" and subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Certificate Registrar, the Trustee, the Master Servicer, any Servicer or the
Depositor to any obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trust Fund., the Certificate Registrar, the Trustee, the
Master Servicer or the Depositor. Notwithstanding anything else to the contrary herein, any
purported transfer of a Certificate to or on behalf of an employee benefit plan subject to ERISA
or to the Code without the opinion of counsel satisfactory to the Certificate Registrar and the
Trustee as described above shall be void and of no effect.
By its acceptance or acquisition of this Certificate, whether upon original issuance or
subsequent transfer, each Holder hereof acknowledges the restrictions and conditions on the
transfer of this Certificate set forth in the Agreement, including the condition that the registration
of the transfer of this Certificate will be subject to the delivery by the transferor hereof of the
applicable transfer certification(s) specified' in the Agreement, unless otherwise provided in the
Agreement. Each Holder of this Certificate agrees that it shall only transfer this Certificate in
. compliance with the provisions of Article m and Section 6.17 of the Agreement.
Reference is hereby made to the further provisions of this Certificate set forth. on the
'reverse hereo: which further provisions shall for all purposes have the same effect as if set forth
at this place. .
This Certificate shall not be en1itled to any benefit under the Agreement or be valid for
any purpose unless manually countersigned by an authorized signatory of the Authenticating
Agent ' "
The' recitals contained 'herein '(other than .the T ~ e e ' s Certificate of Authentication
appearing below) shall be taken as the statements of the Depositor and the Trustee assumes, and
shall have, no responsibility for the correctness of the s a m e ~ The Trustee makes no
representation or wammty as to the validity or sufficienc}' of this Certificate (other than the
Trustee's Certificate of Authentication appearing below) or the Agreement
This Certificate is executed and delivered by U.S. Bank National Association (''U.S.
Bank',) solely in its capacity as Trustee under the Agreement and not in its individual capacity.
Amounts payable under this certificate are payable solely from the Trust Fund conveyed under,
and subject to the terms ot: the Agreement This Certificate is not an obligation of and is not
guaranteed by U.S. Bank. .

A-3
[TPW: NYLEGAL:7S6S66.l9] ~ 0612512008 06:44 PM
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: ______ ,20_
Countersigned:
By ____________________ __
Authorized Signatory of
u.s. BANK NATIONAL ASSOCIATION,
solely as Trustee (and not individually)
By ________________ _
U.S. BANK NATIONAL ASSOCIATION,
solely as Authenticating Agent (and not individually)
A-4
[1PW: NYLEGAL:7S6S66.19) K6OOO-OO992 O6I2SflOO8 06:44 PM
[FORM OF REVERSE OF CERTIFICATE]
MAIDEN LANE COMMERCIAL MORTGAGE-BACKED SECURITIES TRUST 2008-1
Certificates
This Certificate is one of a duly authorized issue of Certificates designated as Maiden
Lane Commercial Mortgage-Backed Securities Trust 2008-1 Certificates (herein collectively
called the "Certificates''), and representing a beneficial ownership interest in the Trust Fund
created by the Agreement. .
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely
to the funds on deposit in the Distribution Account for payment hereunder and that the Trustee is '
not liable to the Certificateholders for any amount payable under this Certificate or 'the
Agreement or, as expressly provided in the Agreement, subject to any liability under the
Agreement
The Certificateholder, by its acceptance of this Certificate, agrees that: (i) each of the
Controlling Party and the Operating Adviser may have special relationships and interests that
conflict with those of certain Certificateholders; (ii) each of the Controlling Party and the
Operating Adviser does not have any duties to any of the Certificateholders other than the
Controlling Party; (iii) each of the Controlling Party and the Operating Adviser may take actions
that favor interests of the Controlling Party over the interests of other Certificateho.lders; and (iv)
neither the Operating Adviser nor the Controlling Party shall have no liability whatsoever for
having so acted, and no Certificateholder may take any action whatsoever against the Controlling
Party, the Operatmg Adviser or any director, officer, employee, agent or principal thereof for
having so acted.
This Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Trustee.
pursuant to the terms of Agreement, 'distributions will be made on each Distribution
Date (as defined in the Agreement) to the Person in whose name thls Certificate is registered at
the close of business on the applicable 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
Holders of the Certificates on such Distribution Date pursuant to the Agreement. The Record
Date applicable to each Distribution Date.is the last Business Day of the month preceding the
month of such DistPbution Date. .
Distributions on this Certificate shall be made by wire transfer of immediately available
funds to tlie account of the Holder hereof at a bank or other' entity having appropriate facilities
therefor, if such Certificateholder shall have so notified the Master Servicer in writing at least
five Busmess Days prior to the related Record and such Certificateholder shall satisfy the
cooditions to receive such form of payment set forth in the Agreement, or, if not, by check
mailed by first class mail to the address of such Certificateholder appearing in the Certificate
A-5
[TPW: NYLOOAL:7S6S66.19] 86QOO.OO992 06f2SI2008 06:44 PM
Register. The fmal distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Certificate Registrar's designated office or
such other location specified in the notice to Certificateholders of such final distribution.
A-6
[1l'W: N'YI.OOAL:7S6S66.19J B6OO()..(J0992 06/2SnJB 06:44 PM
The Agreement pennits, with certain exceptions therein provided, the amendment thereof
and the modification of the rights and obligations of the Trustee and the Master Servicer and the
rights of the Certificateholders under the Agreement at any time by the Master Servicer, the
Controlling Party and the Trustee as provided in the Agreement. Any 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 therefor or
in lieu hereof whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances, without the consent of
the Holders of any of the Certificates.
. As provided in the Agreement and subject to certain limitations therein set forth, the
transfer of this Certificate is l'Ciistrable in the Certificate Register upon swrender of this
Certificate for registration of transfer the office of the Certificate Registrar, accompanied by a
written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by
the holder hereofor such holder's attorney duly authorized in writing, and one qr more
new Certificates in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated trailsferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denoDunations specified in the Agreement. As provided in the Agreement and subject to certain
. limitations therein set forth, Certificates are exchangeable for new Certificates in authorized
denominations and evidencing the same aggregate. Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Controlling Party, the Certificate Registrar and
the Trustee and any agent of the Depositor, the Master Servicer or the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereoffor all purposes, and
neither the Depositor, the Trustee, the Master Servicer, the Controlling Party nor any such agent
shall be affected by any notice to the contrary.
The obligations and responsibilities cieated by the Agreement will terminate upon the
earliest of (i) the final payment or other liquidation of the last Investment remaining in the Trust
Fund and the disposition of all REO Property or REO Other Collateral or (ii) the sUlTender of the
Certificates in exchange for the property relating to the Trust Fund in accordance with the
Agreement and the distribution to Certificateholders of all amounts required to be distributed
pursuant to the Agreement. In no event, will the trust created by the Agreement
. continue beyond the expiration of21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the Agreement ..
A-7
(TPW: NYLEOAL:7S6S66.19}86000-00992 06I2SI2008 06:44 PM
Any tenn used herein that is defined in the Agreement shall have the meaning assigned in
the Agreement, and nothing herein shall be deemed inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby seU(s), assign(s)"and transfer(s) unto __ _
(Please print or typewrite name and address including postal zip code of assignee)
the Percentage Interest evidenced by the within Certificate and hereby authorizeS the transfer of
registration of such Percentage Interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like denomination, to the
above named assignee and deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
" The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire "transfer or otherwise, in immediately available fimds
ro
7
______________________________________________________________ __
____________________________________________________
account number ____________________ ....). or, if mailed by check, to ___________ _
. Applicable statements should be mailed to ______ ---:-________ ----' __________________ -'
This information is provided by ----------------------_______________ ......7
" the assignee named above, or ----__ --------:-----------------______________ --.:J
as its agent.
A-8
[1PW: NYLEOAL:7S6S66"19J B6O()()..()0992 iI6I2SflOO8 06:44 PM
(, ...
STATE OF
COUNTY OF
)
) ss.:
)
On the __ day of 20_ before me, a notary public in and for said
State, personaJly appeared , known to me who,
being by me duly sworn, did depose and say that he executed the foregoing instrument.
Notary Public
[Notarial Seal]
A-9
(T1'W: NYI.EGAL:7S6S66.19}86OOC).(l()992 06t'lSI2008 06:44 PM
EXIDBITB
LIST OF ASSIGNED AGREEMENTS
Servicing Agreements
I. Interim Servicing Agreement, dated as of May 6, 2003, between Bear Steams
Commercial Mortgage, Inc. and Bank of America, National Association.
2. Interim Servicing Agreement, dated as of November 11,2000, between Bear
Steams Commercial Mortgage, Inc. and Orix Capital Markets, LLC (as
predecessor servicer to KeyCorp Real Estate Capital Markets, Inc.).
3. Servicing Agreement, dated as of December 15, 1999, between Bear Steams
Commercial Mortgage, Inc. and Wells Fargo Bank, National Association.
4. Servicing Agreement, dated as of July 14,2005, between NRFC WA Holdings,
LLC, NRFC WA Holdings II, LLC and Wachovia Bank, National Association.
[11'W: NYLEOA1.:7S6S66.19] 8(i()()O.()0992 06I2SI200& 06:44 PM
-
EXHIBITC
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Maiden Lane COminercial Securities Trust 20081 Certificates
Reference is hereby made to -the Trust and Master Servicing Agreement, dated as of June
26, 2008 (the ''Trust and MaSter Servicing Agreement"), by and among Bear Stearns
Commercial Mortgage, Inc., as Depositor, Bank of America, N.A, as Master Servicer, and U.S.
Bank. National Association, as Trustee. Capitalized terms but not defined herein shall have
the meanings given to them in the Trust and Master Servicing Agreement
This letter relates to % Percentage Interests of Certificates which are held in
the form of definitive Certificates registered in the name of (the "Transferor").
The Transferor has requested a transfer of such Certificates for Certificates registered in the
name of [insert name of transferee].
In connection with such and in respect of such Certificates, the Transferor hereby
Certifies that such Certificates are being transferred in accordance with (i) the transfer restrictions
set -forth in the Trust and Master Servicing Agreement and the Certificates and (ii) Rule 144A
under the Securities Act to a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own account -or for the
- account of a "qualified institutional buyer," which purchaser is aware that the sale to it is being
made in reliance upon Rule 144A, in a transaction meeting the requiiements of Rule 144A and in
accordance with any applicable securities laws of any state of the United States or any other
applicable jurisdiction.
-This certificate and the statements contained herein are made for your benefit and the
benefit of the Certificate Registrar and the Depositor.
[Name of Transferor] -
By:
Name:
Title:
Dated: ____ __
C-l
[TPW: NYLEGAL:7S6S66.19) ll600O-OO992 06f2Sf.2008 06:44 PM
Dear Sirs:
EXHIBITD
FORM OF PURCHASER'S LEITER FOR
INSTITUTIONAL ACCREDITED INVESTOR
Date
In connection with our proposed purchase of % Percentage Interest of
Maiden Lane Commercial Mortgage-Backed Securities 2008-1 Certificates (the ''Certificates',)
of Bea,r Steams Commercial Mortgage, Inc. (the "Depositor"), we confinn that:
(I) We understand that the Certificates have not been, and will not be, registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we should sell any
Certificates within two years of the later of the date of original issuance of the
Certificates or the last day on which such Certificates are owned by the Depositor or any
affiliate of the Depositor we will do so only (A) to the Depositor, (B) to "qualified
institutional buyers" (within the . meaning of Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act ("Oms"), (C) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act, or (0) to wi
institutional "accredited investor" within the meaning of Rule 501(a)(I), (2), (3) or (7) of
Regulation D undes; the Securities Act that is not a Qm (an "Institutional Accredited
. Investor'') which, prior to such transfer, delivers to the Certificate Registrar under the
Trust and Master Servicing Agreement, dated as of June 26, 2008, by and among Bear
Steams Commercial Mortgage, Inc., as Depositor, Bank of America, N.A, as Master
Servicer, and U.S. Bank National Association, as Trustee, a signed letter in the fonn of
this letter; and we further agree, in the capacities stated above, to provide to any person
purchasing any of the Certificates from us a notice advising such purchaser that resales of
the Certificates are restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any Certificates to an
Institutional Accredited Investor, we will be required to furnish to the Certificate
Registrar a certification from such transferee in the form hereof to confirm that the
proposed sale is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act. We further understand that
the Certificates purchased by us will bear a legend to the foregoing effect.
. (3) We are acquiring the Certificates for investment pwposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the Securities Act. We
have such knowledge and experience in financial and business ~ t t e r s as to be capable of
evaluating the merits and risks of our invesbnent in the Certificates, and we and any
D-l
[I1'W: NYLEGAL:7S6S66.19) ~ 06I2SIl00& 06:44 PM
I "
. account for which we are acting are each able to bear the ~ n o m i c risk of such
investment
(4) We are an Institutional Accredited Investor and we are acquiring the Certificates
purchased by us for our own account or for one or more accounts (each of which is an
Institutional Accredited Investor) as to each of which we exercise sole investment
discretion:
(5) We have received such infonnation as we deem necessary in order to make our
investment decision.
(6) If we are acquiring Certificates, we understand that in accordance with ERISA, the Code
and the Exemption, no Plan and no person acting on behalf of such a Plan may acquire
such Certificate except in accordance with Section 3.03(d)" of the Trust and Master
Servicing Agreement "
Terms used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust and Master Servicing Agreement
0-2
('I1'W: NYLEGAL:7S6S66.19] /!6OOO.OO99l 06/lSfl008 06:44 PM
You and the Certificate Registrar are entitled to rely upon this l ~ t t e r and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters covered hereby. .
Very truly yours.
[purchaser]
By:
Name:
Title:
D-3
[11'W: NYU:.GAL:7S6S66.19] 86OCio-oo992 06f2SIlQ08 06:44 PM
EXHIBITE
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The Wldersigned is the of ______ (the
"Investor"), a [corporation duly organized] and existing under the laws of , on behalf
of which he makes this affidavit
2. The Investor either (x) is not, and on [date oftraDsfer] will not be,
an employee benefit plan or other retirement arrangement subject to Section 406 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA''), or Section 4975 of
Internal Revenue Code of 1986, as amended (the "Code''), (collectively, a "Planj or a person
acting on behalf of any such Plan or investing the assets of any such Plan; (y) if the Certificate
has been the subject of an ERISA-Qualifying Underwriting, is an insurance company that is
. purchasing. the Certificate with funds contained in an "insurance company general account" as
defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE'') 95-60 and the
purchaSe and holding of the Certificate satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60; or (z) herewith delivers to the Certificate Registrar an opinion
of counsel satisfactory to the Certificate Regisqar, and upon which the Certificate Registrar, the
Trustee, the Mastet Servicer, any Servicer and the Depositor sha1l be entitled to rely, to the effect
. that the pUrChase or holding of such Certificate by the Investor will not constitute or result in any
prohibited transactions under TItle I of ERISA or Section 4975 of the Code and will
not subject the Certificate Registrar, the Trustee, the Master Servicer, the Depositor or any
'Servicer to any obligation in addition to those wulertaken by such entities in the Trust and
Master Servicing Agreement, which opinion of counsel shall not be an expense of the Trust Fund
or the 3;bove parties.
. .
3. The Investor hereby acknowledges that under the terms of the Trust and Master
Servicing Agreement, dated as of June 26, 2008 (the "Agreement''), by and among Bear Stearns
Commercial Mortgage, Inc., as Depositor, Bank of America, N.A., as Master Servicer, and U.S.
Bank National Association, as Trustee, no 1ransfer of the Certificates shall be peonitted to be
made to any person unless the Certificate Registrar has received a certificate from such
transferee in the form hereof.
E-l
[l1'W: NYLOOAL:7S6S66_19] 86OQO.OO992 06f2Sf2008 06:44 PM
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on its
behalf, pursuant to proper authority, by its duly authorized officer, duly attested, this __ ,clay of
______ 20 .
AlTEST:
STATE OF
COUNTY OF
)
)
)
ss.:
[Investor]
By:
Name:
Title:
Personally appeared before me the above-named , known or proved
to me to be the same person who executed the foregoing instrument and to be the
of the Investor, and acknowledged that he the same as his free

act and deed and the free act and deed of the Investor .
.. Subscribed and sworn before me this ___ day of ____ 20 .
NOTARY PUBLIC
My commission expires the
__ ' qay of 20_.
/'
B-2
[JPW: NYU!GAL:7S6566.19) 86OQO.OO992 06'2512008 06:44 PM
EXInBITF
FORM OF CUSTODIAN CERTIFICATION

(Addressed to the Trustee]
Re: The Custodial Agreement, dated as of June 26. 2008. among U.S. Bank National
Association, as the Trustee. Bear Stearns Commercial Mortgage, Inc., as the Depositor,
and LaSalle Bank National Association, as the Custodian.
Ladies and Gentlemen:
The Custodian hereby certifies that the above named person is the Registered Holder of
this Trust Receipt Pursuant to the Custodial Agreement, the Registered Holder is entitled to
possession of the Custodial Files evidenced by this Trust Receipt; provided, however, that in the
event that the Registered Holder requests release of a Custodial File from the possession of the
Custodian, the related Investment shall no longer be subject to or entitled to benefits of the
Custodial Agreemenl Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Custodial Agreement
In accordance with the provisions of Section 3 of the above-referenced Custodial
the undersigned, as the Custodian, hereby certifies that as to each Investment listed
in the related Investment Schedule, it has reviewed the Custodial File, and is in possession ot:
and" is holding on behalf of the Trustee: (i) the original Note or Participation Certificate, as
applicable, as required pursuant to" clause (i) of the definition of Mortgage File or Mezzanine
File, as applicable; and (ii) an Investment File for each such Investment [with respect to Trust
Receipt to be "delivered within 30 dajs of the Closing Dale: and each Investment File contains all
of the documents required to be contained therein pursuant to the definition thereof], subject to
the exceptions noted in the attached exception report. Custodian may rely on the Closing
determine it a 40c1,llllent is required for a Investment The CuStodian
makes no representations as to: (i). the "validity, eDrorceability, recordability,
genuineness or due aUthorization of of the Investment Documents with respect to the
Investments identified on the related "Investment Schedule, or (ii) the CQl1ectability, insurability,
effectiveness or sUitability of any such Investment The Custodian has not conducted an"
independent review of the Investment Documents other than as specifically outlined in the
Custodial Agreement
F-I
(TPW: NYIJ!QAL:1S6S66.19}86O()O.(l()992 06IlSIZ00806:44 PM
Any transfer of this Trust Receipt may be registered upon presentation of this Trust
Receipt (a) by the Registered Holder hereof together with a Notice to the Custodian duly
executed by the Registered Holder or (b) by the transferee hereof together with appropriate
evidence of such transfer, at the office of the Custodian.
The Custodial Files may be inspected by the Registered Holder hereof at the office of the
Custodian during nonnal business hours.
This Trust Receipt shall Dot be valid for any purpose unless duly executed below by
manual signature.
[IPW: NYLE.OAL:7S6S66. 191 86()()()..()()g ~ 8 06:44 PM
LASALLE BANK NATIONAL
ASSOCIATION
as Custodian
By:
Name:
Title:
F-2
t .
EXIDBITG
RELEVANT SERVICING CRITERIA
The assessment of compliance to be delivered by the Master Servicer, the Trustee and the
Custodian shall address, at a minimwn, the criteria identified as below as "Applicable Servicing
Criteria" with respect to such party:
Where there are multiple checks for. criteria the attesting party will identify in their
management assertion that they are attesting only to the portion of the distribution chain
they are responsible for in the related transaction agreements.
Regulation AB Servicillg Criteria
Reference
General Servicing Considerations
Policies and procedures are instituted to
monitor any performance or other triggers
and evmts of demult In accordance with the
1122@(1)(1) tJansaction 8S!reements.
If any malerial servicing activities are
outscun:ed to third parties, policies aDd
proc:ed orcs are fnstltuted to monitor the
third PartYs ped'onnance and
II2UdK I){ii) wilb such servicinlt activities.
Any requiremeuts In the tnulsadion
agrummts 10 maintain a baclc-up servicer
I I 22(d)(J)(Ul)
for the PoolAssclS arc maintained.
A fidelity bond and errors and omissions
policy is in c1fect on the party partiapating
in the servicing fimction throughout the
reporting period in the amount of coverage
by and otherwise in accordance
with the terms of the traDsaction
1122(d)(I)(iv) urcements.
Casb ConedioD ad Administration
Paymmls on pool assets an: deposited into
the appropriate custodial bank accOuots and
relakd bank cIcarIng 8Q;()uots no more tbao
two business days fOUowing receipt, or SICb
other number of days specified in the
I I 22(dK2}(O traosactiou. Is.
Disburac:mcnts made via wire transfi:r on
bebalf of an obUgor or to an invcsu.r arc
I I 22(d)(2)(li) made only by aulhori2lcd personncl.
Advances of fimds or guarantees regarding
collections, cash Bows or distributions; and
any interest or other fees charged for such
advances, arc made, reviewed and approved
1122(d)(2)(iii) as sPecified in -the transaction Is.
The related accounts for the transadlOD,
such as cash rcsc:tVe accounts or aa:ounts
I I 22(d)(2}(lv) established as a form of over
Gl
[1?W: NYUiOAL "7S6S66. t9] 86()()().()()992 W25I2OO8 06:44 PM
Servkers
X X
X X
X X
X X
X X
X X
X X
collateralization. an: separarely maintained
(e.g.. with respect to commingling of cash)
as set forth in the tJansac;tion IBCemCDts.
Each custodial account is maintained at a
X X
federally insured depository institution as
set forth iD the lraosactiOD agreements. For
purposes of this criterion. "fedccally insured
depositOJ)' institution" with r e s p ~ to a
foreign financial institution means a foreign
financial institutiOD that meets the
rcquiremcots of Rule 13k I (b)( I) of the
I I 22(dX2Xv) Securities Exchange Act
Unissued checks arc safeguarded so as to
X X
1 1 22(dX2Xvi) prevent W1authorizcd access.
Reconciliations arc prepared 00 a monthly
X X
basis for all assetbacked securities related
bank acaJwds, including custodial accounts
and related baoJc clearing accounts. These
reconciliations arc (A) mathemalically
accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date. or
such other number of days specified in the
transaction agreements; (C) reviewed and
approved by someone other than the person
who prepared the reconciliation; and (0)
contain explanations for reconciliug items.
These reconciling items arc resolved within
90 calendar days of their original
identification, or such other number of days
I I 22(d)(2)(vii) specified in the transaction lW'CCIIlents.
Investor Remittances and Rcportine.
Reports to investors, including those to be
X X
filed wilh the Commission, arc maintained
in accordance with the I.nlnSactioD
agreemcuts and applicable Commission
requirements. Specifically, such reports (A)
arc prepared in accordance with timeliamcs
and other terms set forth in the tnlDsaction
agreements; (B) provide information
calculated in aceordance with Ihe terms
specified in the transaction agreements; (C)
arc filed with Ihe Commission as required
by its rules and regulations; and (D) BgJCC
with investors' or the trustee's records as to
the total W1paid principal balance and
number of Pool Assets servic:cd by the
II22C d)(3)(i) Servicer.
Amounts due to investors arc allocated BDd
X X
remiUcd in accordance with timeframes,
distribution priority and other lenDs set .
1 I 22(d)(3)(ii) forth in Ihe transaction IW'CCmcnts.
Disbursements made to an investor arc
X X
posted within two business days to the
Sel'vicer's investor records, or such other
Dwnber of days specified in the transaction
11 iii) agreements.
G-2
[Il'W: NYLEOAL:7S6S66.l9] 8600()..()()992 06Il.S12OO8 06:44 PM
Amounts per the
investor reports agree with cancelled
checks, or other fonn of payment, (lr
CUSlodiai
any
payoHS, made in accordance with the
rela1ed pool asset documents arc posted to
the Servicer's obligor records maintained no
more than tw(l business days after receipt.
or such other number of days specified in
the transaction agn:c:ments, and aUoc:a1cd to
principal. interest or other items (e.g..
escrow) in accordance with rhc rdatcd puGl
documents.
BSSCts aglet: with the Sc:niccr's with
respect to an obUBor's unpaid principal
balance.
x
x
respect to terms ,or stanis X
of 1111 obligor's pool assets (e.g., loan
modifications or ro-agiagll) are made,
reViewed and approved by authorized
personnel in aocordance with the tnmsactioll
agreements III1d reIalcd pool asset
Loss or recovezy
forbearance plans, modifications and deeds
in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated.
Conducted and concluded in accordance
with the timcframcs or other requirements
Records dOCUlllCDting dIiu1s arc
maintaI.oed during the period a pool asset is
delinquent in accordance with the
transaction agreements. Such recOrds are
maintained on at least a monthly basis, or
such other period specified in the
tmnsactioD agreements, and describe the
ealiIy's activities in monitoring delinquent
pool assds including, for c:xamp1C; phone
calls, lcUcIS and rescheduling
plans iD cases where delinquency is deemed
" J. "III,. I:.. Ill"ll t "'"
x
x
x
x
x'
'X

G-3
, (11'W: NYLEGAL:756566.19) II6C)()()..(J09 0&2512008 06:44 PM
Regarding any funds held in trust for 8D
X X
obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the
obligor's pool asset documents, on at least
an 8DlIuaI basis. or such other period
specified in the transaction agreements; (8)
interest on such funds is paid. or credited. to
obligors in acconlance with applicable pool
asset documents and state laws; and (C)
such funds an: returned to the obligor within
30 calendar days of full repayment of the
related pool assc:cs. or such other number of
days specified in the InUlsaCtion
1122(dX4)(x) agreements.
Payments made on behalf of an obligor
X X
(such as tax or insurance payments) are
made on or before the related penalty or
expiration dates. as indicated on the
appropriate bills or notices for such
payments, provided that such support has
been received' by the servicer at least 30
calendar days prior to these dates, or such
oCher Dumber of days spa:ified in
1122(d)(4}(xi) transaction agreements.
Any late payment penalties in amnection
X X
with any payment Ul be made on behalf of
iUl obligor an: paid from the Servic:crs
fim.ds and not charged to the obligor, unless
the late payment was due to the obligor's
I I 22(d)( 4Xxii} error or omission.
Disbursements made on behalf of an obligor
X X
are posted withiD two days to the
obligor's records maintained by the
serviccr, or such other number of days
1122{d){4)(xili) in the transaction av.reemc:nts.
Delinquencies. and
X X
UDcoUectible accounts are recognized and
recorded in accordance with the lransaction
1122(dX41(xiv}
Any cxtemal enhancement or other supP,Ort.
X
identified in Item 1114(aXI) through (3) or
Item IllS ofRegWstion AB, is maintained
1 1 22(cf}(4)(xv) as set forth in the transaction agrc:cments.
G-4
[1?W: NYLOOAL "756s66.19J 86OO().(l()992 IWlSI2OO8 06;44 PM
[NAME OF COMPANY] [NAME OF SUBSERVICER]
Date:
By:
Nrune: ______________________ __
Title:
..
G-S
[ll'W; NYLEGAI::7S6566.l9J 86QOO.()(J992 OGf.2Sf2008 06:44 PM
EXlllBITH
FORM OF ANNUAL CERTIFICATION
The Trust and Master Servicing Agreement, dated as of June 26, 2008 (the
"Agreement"), by and among Bear Steams Commercial Mortgage, Inc., as
depositor (the "Depositor"), U.S. Bank National Association, as trustee (the
"Trustee") and Bank of America, N.A., in its capacity as master servicer (the
"Master Servicer").
L
[NAME OF COMPANY], certify to the Depositor, the Master Servicer and their
officers, with the knowledge and intent that they will rely upon this certification,
that
(1) I have reviewed (i) the servicer compliance statement of the Company provided in
accordance with Section 10.01 of the Agreement (the "CQmpliance Statement"), (ii) the
report on assessment of the CQmpany's compliance with the servicing criteria provided in
accordance with Section 10.02 Qf the Agreement, (iii) the registered public accounting
fum's attestation report provided in accordance with Section 10.03 of the Agreement (the
"Attestation RePOrt"), and all servicing reports, officer's certificates and other
infonnatiori relating to the servicing of the Mortgage Loans by the Company during
200U that were delivered by the Company to the Trustee pursuant to the Agreement
(collectively, the "Company Servicing InfOlmation");
(2) Based on my knowledge, the Company Servicing InfQrmatiQn, taken as a whole,
does nQt 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 circwnstances under which
such statements were made, not misleading with respect to the of time covered by
the Company. Servicing Infonnation;
(3) Based on my knowledge, all of the CQmpany Servicing infonnation required tQ be
provided by the Company under the Agreement has 9een provided to the;: Trustee; .
(4) I am responsible for Teviewing the activities performed by the Company as
servicer under the Agreement, and based on knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in the
CQmpliance Statement, the Servicing Assessment or the Attestation the CQmpany
has fulfilled its obligations under the in all material respects; and
(5) The Compliance Statement required to be delivered by the Company pursuant to
the Agreement, and the Servicing Assessment and Attestation Report required to be
provided by the Company and by any Subservicer or Subcontractor pursuant to the
Agreement, have.been provided to the Trustee. Any material instances ofnoricompliance
described in such reports have been disclosed to the Trustee. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports. .
H-l
[TPW: NYLIiGAL:7S6S66.I9) l600O-0O992 06f2SI2008 06:44 PM
By:
Name:
.Title
Date:
["[l'W: NYLBGAL:7S6S66.19j8600C).()0992 06IlSf.Z008 06:44 PM
H-2
EXHIBIT!
SPECIAL SERVICING PROVISIONS
SECTION I General.
(a) These special servicing provisions (the "Special Servicing Provisions") and the
provisions applicable to the Special Servicer set forth in the Trust and Master Servicing
Agreement, dated as of June 26, 2008, to which these Special Servicing Provisions are annexed
as Exhibit I (the "Trust and Master Servicing Agreement', as the same may be modified by any
agreement entered into by the Special Servicer and, at the direction of the Controlling Party, the
Trustee, shall constitute the "Special Servicing Agreement" with respect to each applicable
Specially Serviced Loan. Capitalized terms used and not defined in this Exhibit I shall have the
meaning set forth in the Trust and Master Servicing Agreement. The Special Servicer shall
service and administer the Investments on behalf of the Trustee, and in the best interests and for
the benefit of the Certificateholders, in accordance with any and all applicable laws, the tenns of
the Investment Documents and these Special Servicing Provisions and in accordance with the
Servicing Standard Without limiting the foregoing, and subject to Section 4.08, the Special
Servicer shall service and administer each Mortgage Loan and Serviced Mezzanine Loan (other
than a Corrected Loan) as to which a Servicing Transfer Event has occUIIed and for which it is
the applicable Special Servicer and, in connection therewith, shall comply with each of the
provisions set forth in the. Trust and Master Servicing Agreement applicable to the Special
Servicer, including, without limitation, the applicable provisions 4.02 and 4.1l.
(b) Subject to the terms and provisions of these Special Servicing Provisions and any
consent required from the Controlling Party or contrary direction by the Controlling p.arty, the
Special Servicer shall have full power and authority to do or cause to be done any and all things
in connection with such servicing and administmtion which it may deem necessary or desirable.
Without limiting the generality of the. foregoing, the Special Servicer, in its own name or in the
name of the Trustee, is hereby authorized and empowered by the Trustee to execute and deliver,
on behalf of the CertificatebOlders, the Trustee, or any of them: (i) any and all financing
statem.ents.-.control agreements, continuation statements and other documents or instruments
necessary to perfect Or maintain the lien created by the Mortgage or other security document in
the related Mortgage File or Mezzanine 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 4.06 and 4.07 of the Trust and Master Servicing Agreement and Section 2 of
these Special Servicing Provisions, any and all assumptions, modifications, waivers,
subStitutions, extensions, amendments, consents, including but not limited to, transfers of
interests in Obligors, I 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 an Obligor, 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 operation, maintenance, repair, leasing and
marketing of the related Mortgaged Properties agreements and requests by any
Obligor 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
I-I
[1'PW: NYU:.GAL:762900.6} 8600().()()992 06I'26l2OO8 01:51 AM
the rights, powers and privileges granted or provided to the holder of any Mortgage Loan or
Serviced Mezzanine Loan under the related Investment Documents, lease subordination
agreements, non-disturbance and attornment agreements or other leasing or rental arrangements
that may be requested by any Obligor or its tenants, documents granting, modifying or releasing
(or joining the Obligor 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
Mortgage Loan or Serviced Mezzanine Loan and any other consents and shall be authorized to
institute litigation or any similar proceeding in the name of the Trustee, at the direction of the
Controlling Party, to enforce any rights that the Trustee may have with respect to any
Investment. The Trustee shall, at the written request of a Servicing Officer of the Special
Servicer, furnish, or cause to be so furnished, to the Special Servicer, any limited powers of
attorney and other documents (each of which shall be prepared by such Special Servicer)
necessary or appropriate to enable it to carry out its servicing and a4ministrative duties
hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any
such power of attorney by the Special Servicer.
(c) The Special Servicer shall notify the Master Servicer whenever a Servicing
Advance is require<fto be made with respect to any Specially Serviced Loan or REO Property,
and, subject to Section 4.05, the Master Servicer shall make such Servicing Advance or pay the
related expense from the Distribution Account in accordance with Section 4.01(d). Each such
notice and request shall to the extent reasonably pmcticable be made, in writing, not less than
five Business Days in advance of the date on which the subject Servicing Advance is to be made
and shall be accompanied by such information and documentation regarding the subject
Servicing Advance as the Master Servicer may request.
(d) Upon receipt of any collections or proceeds with respect to any Specially Serviced
Loan (or REO Property or other Collateral), the Special Servicer shall promptly, but in no event
later than one Business Day after receipt, remit such amounts to the Master Servicer for deposit
into the Distribution Account; unless the applicable Special Servicer determines, consistent with
the Servicing Standard, that a partiCular item should not be deposited because of a r,estrictive
"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,
the Special Servicer shall endorse such check to the order of the Master Servicer (in its capacity
as such), without recourse, representation or wananty, unless the Special Servicer determines,
consistent withlhe Servicing Standard, that a particular item. cannot be so endorsed and delivered
because of a restrictive endorsement or of another appropriate reason that is consistent
with the Servicing S:tandllICl.
SECTION 2 Asset Status Rcmort: Controlling Party.
(a) No later than 45 days following a Servicing Transfer Event, the Special Servicer
shall prepare and deliver to the Master Servicer and the Controlling Party a report (the "Asset
Stahls RePOrt'') recommending the taking of certain actions with respect to the related Specially
Serviced Loan. Such Asset Status Report shall set forth the following information to the extent
reasonably.determinable: (i) a summary of the status of such Serviced Loan; (Ii) a
1-2
[1PW: NYLEGAL:762000.6} 86CJOO.()(J992 06l2&'2008 01;51 AM
discussion of the legal and envirorunental considerations reasonably known to the Special
Servicer (including Without limitation by reason of any envirorunental assessment contemplated.
by the Special Servicing Agreement), consistent with the Servicing Standard, that are applicable
to the exercise of remedies hereunder and to the enforcement of any related guaranties or other
collateral for such Specially Serviced Loan; (iii) the most current rent roll and income or
operating statement available for the related Mortgaged Property; (iv) a sununary of the Special
Servicer's recommended action with respect to such Specially Serviced Loan; (v) the Appraised
Value of the related Mortgaged Property, together with the assumptions used in the calculation
thereof; and (vi) such other infonnation as the Special Servicer deems relevant in light of the
Servicing Standard. Subject to these Special Servicing Provisions, the Special Servicer shall
lake all actions directed by the Controlling Party with respect to a Specially Serviced Loan. The
Controlling Party may direct the Special Servicer to take, or to refrain from taking, such actions
as the Controlling Party may deem advisable with respect to the servicing and administration of
Specially Serviced Loans and/or REO Properties. Upon reasonable request, the Special Servicer
shall provide the Controlling Party with any infonnation in the Special Servicer's possession
with respect to such matters, including, without limitation, its reasons for proposing a particular
action. For purposes of determining the Appraised Value for pwposes of clause (v) above, the
Special Servicer will use the most recent Appraisal if such Appraisal is less than 12 months old;
. if such Appraisal is 12 months old or more, then the Special Servicer will order a new Appraisal.
The cost of any Appraisals ordered by the Special Servicer shall be treated as a Servicing
Advance.
f. (b) In addition, notwithstanding anything in any other Section of these Special
SeiVicing Provisions to the contr8.ry, the Special. SeMcer will not be permitted to take, or
consent to another party's taking, any' of the actions identified in clauses (i) through (tx) of this
sentence unless and until. the Special Servicer has notified the Controlling Party and the
Controlling Party has consented thereto in writing having been notified thereof in writing and
having been provided with all reasonably requested infonnation with respect thereto: (t) any
. modification, 'amendment or waiver of a monetary ~ n n or material non-monetary term
(mcluding a change in the timing of payments or any non-monetary term (excluding the waiver
of any "due-on-sale" or "due-on-encumbrance" clause, which clauses are addressed in clause
(viiI1. below); (ii) any acceptance of a discounted payoff with respect to any Specially Serviced
. . Loan; (iii) any determination to bring an REO Property into compliance with applicable
enviionmental laws or to otherwise address Hazardous Materials located at an REO Property;
(iv) any release of collateral for any Specially Serviced Loan (except that in circumstances where
the release of collateral is made upon a full satisfaction of the subject Mortgage Loan or Serviced
Mezzanine Loan); (v) any acceptance of substitute or additional collateral for a Specially
Serviced Loan (except in circumstances where the acCeptance of the substitute or additional
collateral is not conditioned on obtaining the consent of the lender and such circumstances are
still applicabie to such Specially Serviced Loan); (vi) any releaseS or reductions of or
. withdrawals from (as applicable) any letters of credit, reserve funds or other additional collateral
. With r:esPect to any Mortgaged Property securing a Specially Serviced Loan (except diat in
circumstances where the release or reduction of or withdrawal from (as applicable) the
applicable letter of credit, reserve funds or additional collateral is n o ~ 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 Investment Documents do not include the approval of
1-3
(1PW: NYUlGAL:762900.6J 860()().00992 . ~ 01:51 AM
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 Investment Documents that do not include
any other approval or ex.ercise) and such circumstances are still applicable to such Specially
Serviced Loan); (vii) any termination or replacement, or consent to the terinination or
replacement, of a property manager, opemtor, operating tenant or master tenant with respect to
any Mortgaged Property securing a Specially Serviced Loan or any modification, waiver,
tennioation or amendment of any franchise or similar agreement, or any execution of a new
franchise or similar agreement, with respect to any hospitality property; (viii) any approval of the
assignment of the Mortgaged Property securing any Specially Serviced Loan to and assumption
of such Specially Serviced Loan by another Person, any waiver of a "due-on-sale" clause in any
Specially Serviced Loan, any approval of a further encumbrance of the Mortgaged Property
securing any Specially Serviced Loan or any waiver of a clause in any
Specially Serviced Loan; and (ix) any detennination as to whether any type of property-level
insurance is required under the terms of any SpeCially Serviced 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.
(c) All modifications, amendments, material waivers and other material actions
entered into or taken in respect of any Specially Serviced Loans pursuant to this Section and all
material consents, shall be in writing. The Special Servicer shall notify the Trustee and the
Controlling Party in writing, of any material modification, waiver, amendment or other action
entered into or taken thereby in respect of any Investment pursuant to this Section and the date
and shall deliver to the Custodian, on behalf of the Trustee, for .deposit in the related
Investment an original counte.rpart 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. .
Notwithstanding the foregoing, the Special Servicer shall not consent or otherwise act
with respect to modifications, waivers, amendments, consents or other modifications of the tenns
of any Investment unless (i) such modification, waiver, amendment or consent would not
constitute a "significant modification" within the meaning of "Section 1001 of the Code and the
Treasury Regulations promulgated thereunder or Cli) the Special Servicer has received advice of
counsel that such modification, waiver, amendment or consent will not jeopardize the status of
any portion of the Trust Fund which is a grantor trust, as a grantor trust under subpart E, part 1 of
subchapter J of chapter I of the Code.
Notwithstanding anything in this Agreement to the contrary, no direction from the
Controlling party may (and the Special Servicer shall promptly advise the Controlling Party that
the Special Servicer has determined, in its reasonable, good faith judgment, will) reqUire or cause
the Special Servicer to take any action that would result in a violation of (or refrain from 1aking
any action necessary to avoid a violation of) any law of any applicable jwisdiction. Any action
taken by the Special Servicer pursuant to a direction of the Controlling party shall be deemed to
comply with the Seivicing Standard and otherwise with this Agreement for all purposes.
SECITON 3 Realization Upon Mortgaged Properties.
1-4
[l1'W: NYLEGAL:76l9OO.6] 86()()G.()()99l 06I26l2OO8 01:51 AM
(a) The Special Servicer shall, upon the direction of the Controlling Party, and
subject to the tenus and provisions of this Special Servicing Agreement, exercise reasonable
efforts. consistent with the Servicing Standard, to foreclose upon or otherwise comparably
convert the ownership of any Mortgaged Property or other CoUateral securing a Specially
Serviced Loan serviced hereunder that comes into and continues in defilult and as to which no
satisfactory arrangements can' be made for collection of delinquent payments. In connection with
such foreclosure or other conversion. the Special Servicer shall use reasonable efforts to realize
upon such defaulted Investment in such manner as will maximize the receipt of principal and
interest thereon, taking into account, among other things, the timing of foreclosure proceedings.
(b) The Special Servicer shall not 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 Certificaieholders, could,
in the reasonable judgment of the Special Servicer, exercised in accordance with the Servicing
Standard. be considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless:
(i) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on a report prepared by a person who regularly conducts
environmental audits for of or lenders with respect to commercial property,
that:
(A) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that taking such actions as are neCessary to bring
the Mortgaged Property in compliance therewith is reasonably likely to produce a
greater recovery on a present value basis than not taking such actions; and
(B) there are no circumstances or CQnditions 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
. that taking such remediaL corrective and/or other further actions as are necessary
to bring the Mortgaged Property into compliance with applicable environmental
laws and regulations is reasonably likely to produce a greater recovery on a
. present value basis than not taking such actions; and .
(ii) the Special Scrvicer has notified, and obtained the prior written consent of,
the Controlling Party for such action.
The cost of preparation of any environmental assessment, as well as the cost of any
remedial, corrective or other action contemplated by clause (i) andIor clause Cii) of this paragraph
(b)-shall be covered by, and be reimbursable as a Servicing Advance.
(c) If the Special Servicer determines that the conditions set forth in clauses (i) and
m of paragraph (b) have not been satisfied with respect to any Mortgaged Property securing a
1-5
[Ti'W: NYLEGAL:76l9OO.6] 1160()0..()0992 06I26l2OO8 01:51 AM
Specially Serviced Loan., the Special Servicer shall (i) propose to the Controlling Party in writing
such action as it detennines in accordance with the Servicing Standard to be in the best economic
interest of the Certificateholders, including without limitation the release of all or a portion of
such Mortgaged Property from the lien of the related Mortgage; and (ii) take such action only if
it obtains the prior written consent of the Controlling Party.
(d) Upon the direction of the Controlling Party, and in accordance with the Servicing
Standard, the Special Servicer shall (i) detennine the advisability of seeking to obtain a
deficiency judgment if the law of the applicable jurisdiction and the terms of the related
Investment Docwnents pennit such an action, and (ii) seek such deficiency judgment if so
~ e c ~ .
(e) Annually in each January, the Special Servicer shall prepare and file with the
Internal Revenue Service 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 Specially Serviced Loan for which it is the Special Servicer, or Mortgaged
Property securing a Specially Serviced Loan for which it is the Special Servicer, required by
Sections 6050H (as applicable), 60501 and 6050P of the Code. Contemporaneously therewith,
the Special Servicer shall deliver a copy of such infonnation returns to the Trustee, the Master
. Servicer and the Controlling Party.
(f) The Special Servicer shall advise the Mastel' Servicer and the Controlling Party if
it determines that it may be appropriate for the Controlling Party to make a Final Recovery
Determination with respect to any Specially Serviced Loan. The Controlling Party shall notify
the Special Servicer, the Master Servicer and the Trustee of such Final Recovery Detennination
(if any) made by it.
SECTION 4 REO Pr2Perty.
(a) In the event that title to an REO Property or other Collateral is acquired, the deed
or certificate of sale shall be issued to the Trustee or its nominee, as Trustee on behalf of the
Certificateholders_as .. dire.ctffl . by the Controlling Party. The Special Servicer at, . .ancLin
accordance with, the direction of the Controlling Party and the Servicing Standard shall sell or
otherwise liquidate any REO Property or other Collateral obtained in connection with a Specially
Serviced Loan.
(b) If title to an REO Property is acquired as provided in these Special Servicing
Provisions, the Special Servicer, at the direction of the Controlling Party, shall manage,
conserve, protect and operate such REO Property for the benefit of the Certificateholders, solely
for the purpose of the prompt disposition and sale of such REO Property in accordance with the
terms and provisions of these Special Servicing Provisions, and in a manner that does not
jeopardize the status of any portion of the Trust Fund which is a grantor trust, as a grantor trust
under subpart E, part I of subchapter 1 of chapter 1 cjf the Code. With the written consent of the
Controlling Party, the Special Servicer may instruct the Master ServiCe! to retain in a sub-
account of the Expense Reserve Account, such portion of the proceeds and collections on the
Investinents as may be necessary to maintain a reserve of sufficient funds for the proper
operation, management, leasing, maintenance and disposition of an REO Property (including the
1-6
('IPW: NYLEGAL:762900.6] 8600().00992 06I26l2OO8 01:51 AM
creation of a reasonable reserve for repairs, replacements, necessary capital improvements and
other related expenses). The Special Servicer shall . have full power and authority to do any and
all things in connection with the administration of an REO Property, as are consistent with the
Servicing Standard and the direction of the Controlling Party and, consistent therewith, shall
instruct the Master Servicer to advance or withdraw from the applicable sub-account of the
Expense Reserve 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.
(e) At the direction of the Controlling Party, the Special Servicer shall sell or purchase, or
permit the saJe or pW"Chase o ~ an REO Property under the tenns and subject to the conditions set forth in
this Section and the instructions of the Controlling Party and in connection therewith, shall use its
reasonable efforts, consistent with the Servicing Standard, to solicit cash bids for an REO
Property.
SECTION 5 Special Servicing Compensation.
(a) As compensation for itS services under these Special Servicing Provisions, the
Special Servi.cer shall be entitled to receive, with respect to each Specially Serviced Loan, a fee
(the "Special Servicing Fee") payable monthly from the Distribution Account in accordance with
. Section 4.01(d). Unless otherwise agreed between the Special Servicerand the Controlling Party,
the Special Servicing Fee shall accrue at a per annum rate equal to 0.25% and shall be computed
on the basis of the same principal amount and period respecting which any related interest
payment on a Specially Serviced Loan is computed. For purposes hereof: a Specially Serviced
Loan as to which the related Mortgaged Property has b ~ acquired for the Trust as an REO
Property will be deemed to continue to be outstanding until there has been a disposition of the
REO Property and a Final Recovery Determination has been made. The Special Servicing Fee
with respect to any Specially Serviced Loan shall cease to accrue as of the date a Liquidation
Event occurs in respect thereOf or, in the case of such a Specially Serviced Loan, as of the date it
becomes a Corrected Loan.
(b) As further compensation for its activities hereunder, the Special Servicer sball be
entitled to receive a workout fee (the "Workout Fee") with respect to ~ c h Specially Serviced
. Loan that becomes a Corrected Loan and for which such Special Servicer is the applicable
Special Servicer. As to each such Corrected Loan, the Workout Fee sball be payable out of, and
sball be calculated by application of the Workout Fee Rate to, each payment of interest (other
1-7
[Il'W: NYLEGAL'762900.6) 86000-00992 06I26l2008 01:51 AM
than Default Interest and, in the case of ARD Loans, ARD Additional Interest) and principaJ
received from the related Obligor on such Corrected Loan for so long as it remains a Corrected
Loan. Unless otherwise agreed between the Special Servicer and the Controlling Party, the
"Workout Fee Rate" with respect to each Corrected Loan will be 1.0%. The Workout Fee with
respect to any Corrected Loan will cease to be payable if such Corrected Loan again becomes a
Specially Serviced Loan or if the related Mortgaged Property becomes an REO Property;
provided that a new Workout Fee would become payable if and when such Specially Serviced
Loan again became a Corrected Loan after having again become a Specially Serviced 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 any Specially Serviced Loans serviced by such Special Servicer that
became Corrected Loans during the period that it acted as Special Servicer and that were still
Corrected Loans at the time of such termination or resignation; provided, however, that no other
event has occurred as of the time of such Special Servicer's termination or resignation that would
otherwise cause such Investment. to again become a Specially Serviced Loan. Notwithstanding
the foregoing, no Workout Fee shall be payable pursuant to these Special Servicing Provisions
with respect to (i) any Corrected Loan other than an Easily Corrected Loan, unless either (A)
there has been executed a written forbearance, waiver, modification or similar agreement'
memorializi.ti.g the resolution of the material issues that had been responsible for such Corrected
Loan's prior status as a Specially Serviced Loan or (B) the Special Servicer, in its reasonable
judgment in a c c o r d a n ~ with the Servicing Standard, has been involved in significant workout or
modification negotiations or has taken significant legal or other actions or undertaken
preparations therefor in order to enforce the related Investment Documents or to protect or
preserve the collateral related to such Investment or the rights and remedies of the Trust Fund
otherwise with respect to such IDvestment or (ii) any Easily Corrected. Loan. As used in the
preceding sentence, "Easily Corrected Loan" means a Corrected Loan as to which each and
every one of the following statements is true: (i) it had been a Specially Serviced Loan by reason
of a single default, (d) it became a Corrected Loan because the related Obligor cured the default
within 45 days of the date the Special Servicer first notified such Obligor of such default, (ili) in
the reasonable judgment of the Special Servicer in accordance with the Servicing Standard, no
. significant legal or other actions or preparations therefor were undertaken by the Special Servicer
during such 45..<fay period in order to enforce the related InvestmenfDocuments or to protect or
preserve the collateral related to such Investment or the rights and remedies qf the Trust Fund
otherwise with respect to such Investment and (iv) no other defiwlt by such Obligor occurred
during such 45-day period. For the avoidance of doubt, the foregoing' provisions address only
the entitlement to a Workout Fee from the Trost Fund pursuant to these Special Servicing
Provisions; if a' Person is required to pay a workout fee with respeCt to a particular Investment
under the related Investment Documents, the Special Servicer may still charge such Person such
liquidation fee and keep any such liquidation fee as additional servicing compensation to the
extent collected from such Person '
(c) As further compensation for its activities hereunder, the Special Servicer shall also be
entitled to receive a liquidation fee (the "Liquidation Fee") with respect to each Specially.
Serviced Loan for which it is the applicable Special Servicer and as to which it receives any full,
partial or discounted payoff from the related Obligor or for which it receives any Condemnation
Proceeds, Insmance Proceeds or Liquidation Proceeds. As to each such Specially Serviced Loan
1-8
(TPW: NYlOOAL:762900.6) 86000.00992 06/26f2008 01:S1 AM
for which the Special Servicer is entitled to a Liquidation Fee, such Liquidation Fee shall be
payable out of, and shall be calculated by application of the Liquidation Fee Rate (as defined
below) to, any such full, partial or discounted payoff, Condemnation Proceeds, Insurance
Proceeds andlor Liquidation Proceeds received or collected in respect thereof (other than any
portion of such payment or proceeds that represents Default Interest, Prepayment Premiwns, or,
in the case of any ARD Loans, proceeds that represent ARD Additional Interest). Unless
otherwise agreed between the Special Servicer and the Controlling Party, the "Liquidation Fee
Rate" with respect to each Specially Serviced Loan will be 1.0%. The Liquidation Fee with
respect to any such Specially Serviced Loan will not be payable if such Specially Serviced Loan
becomes a Corrected Loan. Notwithstanding the foregoing, no Liquidation Fee shall be payable
pursuant to these Special Servicing Provisions (a) with respect to any sale of any Specially
Serviced Loan at the direction of the Controlling Party, if such sale occurs within 90 days of the
date such Specially Serviced Loan became a Specially Serviced Loan; (b) with respect to the
purchase of any Specially Serviced Loan by any Person pursuant to a right given to such Person
lUlder the related Investment Documents, if such purchase occurs within 90 days of the date such
Specially Serviced Loan became a Specially Serviced Loan; or (c) with respect to the pW'Chase
of a Specially Serviced Loan by the Depositor in connection with a Defective Investment as
required by Section 2.05 of the Trust and Master Servicing Agreement, if such purchase occurs
within the time period required for such repurchase by Section 2.05. For the avoidance of doubt,
the foregoing provisions address only the entitlement to a Liquidation Fee from the Trust Fund
pursuant to these Special Servicing Provisions; if a Person is required to pay a liquidation fee
with respect to a particular Investment under the related Investment Documents, the Special
Servicer may still charge such Person such liquidation fee and keep any such liquidation fee as
additional servicing compensation to the extent collected from such Person. .
The Special Servicer's right to receive any Special Servicing Fee, Workout Fee andlor
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 these Special Servicing Provisions.
SECTION 6 Annual Reporting Requirements.
With respect to each year or portion thereof that these Special Servicing Provisions have
been in effect, the Special Servicer shall provide (a) to the Master Servicer, the Trustee and the
Controlling Party, by the date specified and otherwise in accordance with Section 10.01 of the
Trust and Master Servicing Agreement, an Item 1123 Certification for itself and any Servicing
Ftmction Participant retained by the Special Servicer, (b) to the Master Servicer and the
Controlling Party, by the date specified and otherwise in accordance with Section 10.02 of the
Trust and Master Servicing Agreement, an Assessment of Compliance for itself and any
Servicing Function Participant retained by the Special Servicer, (c) to the Master Servicer and
the Controlling Party, by the date specified and otherwise in accordance with Section 10.03 of
the Trust and Servicing Agreement, an Accountant's Attestation for itself and any Servicing
Function Participant retained by the Special Servicer. The Special Servicer shall be entitled to
the benefit of the limitations in Section 10.04 of the Trust and Master Servicing Agreement to
the same extent as provided for the Master Servicer with respect to the provision of each
such Item 1123 Certification, Assessment of Compliance and Accountant's Attestation.
1-9
{lPW: NYLEGAL:762900.6J I6OIJO.OO992 06I26f2008 OJ:!!J AM
EXHIBITJ
FORM OF REMlTIANCE REPORT
' .
"
J-l
{l1'W: NYLEGAL:7S6.f66.19] lJ6OOO.OO992 06I2SI2008 06:44 PM
Tt1t1m-ttH1#++Hi-W-l-UJillJ-
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ExHmITK
FORM OF MONTHLy REPORT
K-l
[IPW: NYImAL'"7S6S66..19) 86OCJO..CXI992 06flSfl008 06:44 PM
CMBS Trust 20081
g:
Bank of America, N.A. - Master Servicer
Monthly Insurance Monitoring Report
ned hereby certifies that it holds. in Its custody a certificate or other appropriate proof of valid insurance on the properties serviced by Sub-Servicer for .
erenced Grantor Trust for Bank of America as Master Servicer. The various types and amounts of insurance coverage provfded by such policies comply
irements of the individual loan documents. The name or names of the insured exactly conform to the name or names In which title Is held. A standard,
;,ry mortgagee clausein favor of the Trust for the applicable Trust has been secured.
Officer Signature Date
Name I TItle
120118-'
__ s..,..nle ""'"
Bank of America, N.A. - Master Servicer
Monthly Tax Monitoring Report
"I I "
CG,'IRes"Ih"11I """ "",lIieol ruu .... ymen. or aliI.'" cslGle laxos on propell/es" coyered by all mortllage loans Sub-servIced by iI on behalr or Bank or Amellca. N.A. anol held by '''e abo" ...... rerenced Gran.or Trust. The undersigned rvrt"er
neol sales or ol"er liens ale outslandln9 "liDlnsi any or I"" afolesald propell/es o.her Ihan Inol"'"leol ;>boye on Ihe """tIL
Officer Slgna.ure ODIe
N:uncl TlII
.. M1( F.2114on1Ny Taa
rust20081
~
Bank of America, N.A. - Master Servicer
Monthly UCC Monitoring Report
!by certifies that it holds in its custody a certificate or other approS)riate proof of valid UCC liens and any assignments. andlor continuations thereof, as required by individuall03n documents In accordance
n9 practices on the individual properties which are securing mortgage loans held by Ihe Grantor Trust referenced above. Tho undersigned further certifies that no UCC financing statement has oxpired
n being filed other than slaled aboVe on tho matrhc.
Officer Signature Date
Name I Tille
PM
AAR E.tb"bit F-3 (MonIhIy UCC M o ~ o M g
( . '
EXHIBlTL
FORM OF TENANT EXPOSURE REPORT
L-l
(I1'W: HYLEGAL:7S6S6&.19J 8601JO.OO992 05I2SI2008 06:44 PM
Tenant Base Rent ITenant Base Rent I SF
-
erties
Tenant Base Rent ITenant Base Rent I SF Rent Roll Date
.. .
~ - -
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..
EXHmITM
JPMORGAN GUARANTY
M-l
[TPW: NYLEGAL:7S6S66..19] 8600().()(1992 06I2Sf200a 06:44 PM
Execution Copy
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") is made as of the 26th
day of June, 2008, by JPMORGAN CHASE & CO. (the "Guarantor"), a Delaware
corporation headquartered in New York, New York, in favor of Maiden Lane LLC, a
Delaware limited liability company (the "Buyer'1 and U.S. Bank National Association, in
its capacity as "trustee" under each of the Grantor Trust and Master Servicing Agreement
- Commercial and the Grantor Trust and Master Servicing Agreement - Residential (in
such capacities, the "Trustee").
A. The Buyer, Bear Steams & Co. Inc. (UBS&Co.") and the affiliates of
BS&Co. named therein (BS&Co. and each such affiliate, an "Acquisition Agreement
Covered BSC Entity" and, collectively, the "Acquisition Agreement Covered BSC
Entities") are parties to an Asset Acquisition Agreement, dated as of June 26, 2008 (the
"Asset Acquisition Agreement");
B. EMC Mortgage' Corporation' is (x) the depositor under the Grantor
Trust and Master Servicing Agreeinent - Residential and (y) the servicer under the EMC
Servicing Agreement, dated as of June I, 2008 (the "Servicing Agreement") among EMC
Mortgage Corporation, as servicer, U.S. Bank National Association, as trustee of the
Maiden Lane Asset Backed Securities I Trust 2008-1 and Wells Fargo Bank, N.A., as
servicer, and Bear Steams Commercial Mortgage, Inc. is the depositor under the
Grantor Trust and Master Servicing Agreement - Commercial (each such depositor and
EMC Mortgage Corporatiol'i, as servicer under the Servicing Agreement, a "Trust
Covered BSC Entity" and, .. asc Entities" and the Trust
Covered BSC Entities and the Acquisiti'on Agreement Covered BSC Entities, each a
"Covered BSC Entity" and, collectively, the "Covered asc Entities"). The Trust
Certificates issued pursuant to the Grantor Trust and Master Serv.icing Agreement -
Residential and the Grantor Trust and Master Servicing Agreement :...... Commercial
(collectively (and, including without limitation, any lost note affidavit and
indemnification agreement delivered by EMC Mortgage Corpotation in connection with
the Grantor Trust and Master Servicing Agreement - Residential), the "I!:YM
Agreements" and, together with the Asset Acquisition Agreement and the Servicing
Agreement, the "Applicable Agreements'1 will be sold and assigned to the Buyer
pursuant to the Asset Acquisition Agreement;
C. As a condition precedent to entering into the Asset Acquisition
Agreement, the Buyer has requested that the Guarantor enter into a guaranty;
D. Capitalized terms used in this Guaranty and not otherwise defined shall
have the respective meanings set forth in (or by reference in) the Asset Acquisition
Agreement;
I ..... It' .
261594
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NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the Guarantor
agrees as follows:
1. The Guarantor hereby unconditionally, absolutely and irrevocably guarantees
to the Buyer (in the case of the Trust Agreements and the Servicing Agreement, in its
capacity as holder of the related Trust Certificates) and, with respect to the obligations of
the Trust Covered BSC Entities, the Trustee the due and punctual perfonnance and
payment of all Covered Liabilities of the Covered BSC Entities on the tenns set forth
herein.
2. As used in this Guaranty, the tenn "Covered Liabilities" means all present
and future liabilities and obligations, due or to become due, of the Covered BSC Entities
to (i) the Buyer under the Asset Acquisition Agreement and (ii) the Buyer and the Trustee
under the Trust Agreements and (in the case of 'EMC Mortgage Corporation) the
Servicing Agreement, in each case, whether absolute or contingent, liquidated or
unliquidated, intraday/daylight, overnight or short or long tenn. No payment made by
any of the Covered BSC Entities, the Guarantor, any other guarantor or any other person
or received or collected by the Buyer or the Trustee from any of the Covered BSC
Entities, the Guarantor, any other guarantor or any other person by virtue of any action or
proceeding or any set-otT or appropriation or application at any time or from time to time
in reduction of or in payment of any of the Covered Liabilities shall be deemed to
modify, reduce, release or otherwise affect the liability of the Guarantor hereWlder, which
shall, notwithStanding any such payment (other than any payment made by the Guarantor
or any Covered BSC Entity in respect of the Covered Liabilities or any payment received
or coilected from the Guarantor or any Covered BSC Entity in respect of the Covered
Liabilities), remain liable for the Covered Liabilities up to the maximum liability of the
Guarantor hereunder until all of the Covered Liabilities are paid in full.
3. The Guarantor hereby agrees that its obligations hereunder shall be
c?ntinuing, absolute .and ;or
dIscharge, release or of the Covered LIabIlitIes against the apphcable
Covered BSC Entity or of the Applicable Agreements, (ii) the absence of any action to
enforce the Covered Liabilities against the applicable Covered BSC Entity, (iii) any
amendment, waiver or consent by the Controlling Party, the applicable Covered BSC
Entity, the Buyer or the Trustee with respect to MY provision of any Applicable
Agreement, (iv) any insolvency proceeding, receivership, bankruptcy or similar
proceeding of any Covered BSC Entity, (v) any merger or consolidation to which any
Covered BSC Entity or the Buyer is a party, (vi) any defense, set-off or counterclaim
(other than a defense of payment or perfonnance) which may at any time be available to
or be asserted by the Covered BSe Entities or any other person against the Buyer or the
Trustee, or (vii) any other circumstance that might otherwise constitute (or might be
construed to constitute) a legal or or defense of a surety or guarantor,
in bankruptcy or otherwise. The Guarantor hereby waives promptness, diligence,
presentment, demand of payment, filing of claims with any court, any right to require a
proceed ing first against applicable Covered BSC Entity, protest or notice with respect to
261594 2
:.; : . / .. . ,
.
the applicable Covered Liability and all demands whatsoever, and covenants that this
Guaranty will not be discharged except by complete payment and perfonnance of the
applicable Covered Liability and the obligations in this Guaranty in accordance with the
terms of the Applicable Agreements and hereof, respectively.
4. The Guarantor shaJl be subrogated to all rights the applicable Covered
BSC Entity in respect of any amounts paid by the Guarantor pursuant to the provisions of
this Guaranty; provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of, such right of subrogation until the applicable
Covered Liabilities shall have been paid in full. If any amount shall be paid to the
Guarantor on account of such suprogation. rights at any time when all of the Covered
Liabilities shall not have been paid in full, such amount shall be held by the Guarantor in
trust for the Buyer or the Tmstee, as applicable, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to the
Buyer or the Trustee, as applicable, in the exact fonn received by the Guarantor (duly
indorsed by the Guarantor to the Buyer or the Trustee, as applicable, if required), to be
applied against the Covered Liabilities, whether matured or unmatured, in such order as
the Buyer may detennine.
' ..
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,: " . ! . '
5. This Guaranty \s a or'payment when due and not of collection, and
when '!laking any demand or otherwise pursuing its rights and remedies
hereunder against the Guarantor, the Buyer and the Trustee may, but .shall be under no
obligation to, make a similar demand on or otherwise pursue such righrs and remedies as
,it may have against any of the Covered BSC Entities or any other person or against any
collateral security or guarantee for the Covered Liabilities or any right of offset with
respect thereto, and any failure by the Buyer or the Trustee to make al')y such demand, to
pursue such other rights or remedies or to collect any payments from any of the Covered
BSC Entities or any other person or guarantee or to exercise any such right of offset, or
any release of any of the Covered SSC Entities or any other person guarantee or right of
. I
offset, shall not relieve the Guarantor of..jillY obligation or liability hereunder, and shall
'. not impair or affect the rights and' whether express, implied or available as a
matter of law, of the Buyer and the Trustee against the Guarantor. For the pUrposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
This Guaranty shall continue to be effective, or be reinstated, as the case may
be, in respect of any Covered Liabilities if at any time payment, or any part thereof, of
such Covered Liabilities is be restored or returned by the
Buyer or the Trustee, as applicable; all though such payments had not been made. The
Guarantor waives any and all notice of the creation, renewal, extension or accrual of any
of the Covered Liabilities and notice of or proof of reliance by the Buyer or the Trustee
upon this Guaranty or the acceptance of this Guaranty. The Covered Liabilities, and any
of them, .shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty. AU dealings
between any of the Covered BSC Entities and the Guarantor, on the one hand, and the
261.594
3
Buyer and the Trustee, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon this Guaranty.
6. The obligations of the Guarantor .hereunder shall not affect. impair or limit
any right of any Covered Bse Entity or any director, officer or employee thereof under
any insurance program, policy or contract, or release, limit the liability of, or otherwise
inure to the benefit of any insurer thereunder.
7. Neither the Buyer nor the Trustee shall by any act (except a writing expressly
stating that it constitutes a waiver hereunder), delay, indulgence, omission or otherwise,
be deemed to have waived any right or remedy herein or to have acquiesced in any
default under the Covered Liabilities or hereunder. No failure of the Buyer or the Trustee
to exercise, and no delay by the Buyer or the Trustee in exercising. any right, remedy,
privilege or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by the Buyer or the Trustee of any right, remedy, privilege or power
hereunder .preclude any other or future exercise thereof or the exercise of any other right,
remedy, privilege or power. A waiver by the Buyer or the Trustee of any right or remedy
hereunder on anyone occasion shall not be construed as a bar to any right or remedy
which the Buyer or the Trustee would otherwise have on any future occasion. Each and
every right, remedy, privilege and power provided herein to the Buyer and the Trustee or
allowed such Persons by law or other agreement shall be cumulative and not exclusive of
any other right; remedy, privilege or power, and may be exercised by the Buyer or the
Trustee singly or concurrently time.and from time to time.
;.
8. The Guaranto"r hereby.:represents and warrants that:
(a) it is duly organized, validly existing and in good standing under the laws of
the State of Delaware;
(b) the execution, delivery and performance of this Guaranty are within its
corporate powers and have been duly authorized by all necessary action of its directors;
(c) each person executing this Guaranty has the authority to execute and deliver
this Guaranty on its behalf; and .
. ,
(d) this Guaranty has been duly executed and delivered by the Guarantor and
constitutes a legal, valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its tenns, except as enforceability may be limited by
applicable bankruptcy. insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
9. The Guarantor pay: Buyer and the Trustee for all of
their reasonable costs and incu:rred in collecting against the Guarantor under
this Guaranty or otherwise enforcing or preserving any rights hereunder. The agreements
261594
4
in this Section 9 shaH survive repayment of the Covered Liabilities and all other amounts
payable under this Guaranty.
10. Any notice or other communication to the Guarantor in respect of this
Guaranty may be given in. any manner set forth below to the addresses or numbers or in
accordance with the e-mail or electronic messaging system details provided below and
will be deemed effective as indicated:
(i) ifin writing and delivered in person or by courier, on the date it is delivered;
(ii) if sent by facsimile transmission, on the date that transmission is received in
legible fonn (it being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's facsimile machine);
(iii) if sent by certified or registered mail (airmail, if overseas) or the equivalent
(return receipt requested), on the date that mail is delivered or its delivery is anempted;
(iv) if sent by electronic messaging system, on the date that electronic message is
received; or
(v) if sent bye-mail, on the date that e-mail is delivered.
JPlyforgan Chase & Co.
270 Park Avenue
New York, New York 10017
212-270-0819 (fax)
Attention: PeterW. Smith
e-mail: Peter.W.Smith@jpmorgan.com
with a copy to:
, :
JPMorgan Chase & Co.
270 Park Avenue
New York, New York 10017
212-270-3261 (fax)
Attention: Sharon A. Cherry
e-mail: sharon.a.cherry@jpmchase.com
11. TIris Guaranty shall be binding upon the successors and assigns of the
Guarantor and shall inure to the benefit of the. Buyer, the Trustee and their respective
successors and assigns; provided that the Guarantor may not assign, transfer or delegate
any of its rights or obligations under this Guaranty without the prior written consent of
the Buyer; provided, further. that, with respect to the rights of the Buyer as holder of the
Trust Certificates hereunder, such rights may only be enforced by the Buyer for so long
as it holds an interest in the applicable Trust Certificates or, thereafter, by an assignee
holding a majority interest in the applicable Trust Certificates.
261S94 , 5:
12. Any provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. This Guaranty represents the agreement of the parties hereto with respect to
the subject matter hereof, and there are no promises, undertakings, representations or
warranties by the Buyer or the Trustee relative to the subject matter hereof not expressly
set forth or referred to herein.
14. This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York.
15. This Guaranty may be executed by one or more of the parties to this
Guaranty on any number of separate counterparts (including by telecopy or other
electronic form), and all of said counterparts taken together shall be deemed to constitute
one and the same instrument.
. 16. The terms or provisions of this Guaranty may be amended, waived,
supplemented or otherwise modified only by an instrument in writing signed by an
authorized signatory of each of the Trustee, the Buyer and the Guarantor.
17. THE GUARANTOR SUBMITS TN ANY LEGAL ACTION OR
PROCEEDING RELATING TO OR ARISING OUT OF THIS GUARANTY, OR THE
CONDUCT OF ANY PARTY WITH RESPECT THEREFOR OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT TN RESPECT
THEREOF, TO THE EXCLUSIVE OF THE FEDERAL
COURT LOCATED IN THE BOROUGROFMANHAITAN IN NEW YORK CITY
AND ANY APPELLATE COURT THEREOF AND THE COURTS OF THE STATE
OF NEW YORK LOCATED TN THE BOROUGH OF MANHAITAN IN NEW YORK
CITY AND ANY APPELLATE COURT THEREOF. THE GUARANTOR AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY
BE EFFECTED BY MAILING A COpy THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
POSTAGE PREPAID, TO THE I}DDI\ESS IN THIS GUARANfY; AND
AGREES THAT NOTHING HEREINSHALL AFFECT THE RIGHT TO EFFECT
'SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURiSDICTION. THE
GUARANTOR IRREVOCABL Y W AlVES, TO THE FULLEST EXTENT
'PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HA VE TO THE VENUE OF ANY SUCH SUIT, ACTION, OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, .
ACTION OR PROCEEDING BROUGI-IT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. THE GUARANTOR ALSO AGREES
261594
6
I ,:.\/
. ~ " ' .
THAT A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION, OR PROCEEDING
BROUGHT IN SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON IT.
THE GUARANTOR, THE TRUSTEE AND THE BUYER EACH HEREBY
UNCONDITIONALL Y AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM, OR CROSS CLAIM
ARISING IN COl\'NECTION WITH, OUT OF, OR OTHERWISE RELATING TO
THIS GUARANTY, THE APPLICABLE AGREEMENTS OR ANY TRANSACTION
OR AGREEMENT ARISING THEREFROM OR RELATED THERETO .
261594
.; .:
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, '. . '\ I ' ~ . ' .
7
IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned
as of the date first written above.
JPMORGAN CHASE & CO.
By: _________ _
Name:
Title:
MAIDEN LANE LLC,
by the Federal Reserve Bank of New York,
as its sole Managing Member
By:.-:-:-________ _
Name:
Title:
.U.S'.,BANK"NATIONAL ASSOCIATION,
'not hi' itS'indiVidUhl capacity, but solely as Trustee
By: __ - - - - - - - - - ~ - - -
Name:
Title:
.. ~ ." .. ~ : ' ,
"
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' . . ~ .
SCHEDULE A
MORTGAGE LOAN SCHEDULE
Schedule A-I
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SCHEDULEB
COMPANION LOAN SCHEDULE
Schedule B-1
[TPW: NYlEOAL:7S6S66.19] 86000..0()9!n 06l2Sno08 06:44 PM
t : ~
SCHEDULEC
MEZZANINE LOAN SCHEDULE
Schedule C-l
(TPW; N)'LEGAL:7S6S66.19J ~ 6 0 0 0 - 0 0 9 9 2 06l2Sl2008 06:44 PM
-_.- C
Purchase Price of
tile CUmlnt Funded Purelut ... Prlcr 01 loan Inde. ind Prepay......,1
C"""nt Funded CUmtnt unfunded Balance of Ihe Curront Margin. or Fbrd Prolectlon Tenn.
Din NamolProjecl Balance DS of Balance as 01 Unli PrIce as of 311.nGOI (1ndUCIlng Unlundrcl Balance Inillol Scheduled Exlrndod """urlty In"'_' Rate las Imlkr.wlutle or
Nlme BOtYow.!f Original 9118Me . 1II.nG0I 1II4QD0I lIIC12OO1 Accrued I"teresll as 01 311<112001 Malurlty Date DIlle appliQblel defelO.ncel Inlerlm Se"';cer
1%(12) Ihcralkr
Ioftdet'll cIiscn!tion.
Mountaingal e Forum 0(0) (MIls! bO
Hddings. llC.Union ddeasedln
""'" C,,",er Mel2. F_ HaI6ngs. tLC:S9Mo conjundian wi!b
RPP S...,.,. Forum HoI:Ings. tLC 92 800.00 92 800.00 68.75'11. 639 5681 0.00 11112018 NAP 11.000% .....ngageIDMI Wells F If\JO
1%(12)111""""' ...

MounIMgale 9CN 0(0) (Must bO
tLC. l.bWon BCN Ho!dInOS def .... edin
Wdl!IDRetail tLC and Spring $_ 9CN oonI.-tlcrlwah
90 1;':'- ;:: 1I1I0Ii0 Moa - RPP HoIdn9s. u..C 1.387.200.00 1.387.200.00 5S.52% 775.600 . 7 0.00 11112016 NAI' 11.000% morlg.""'l
RP BaItlIoIn Ralal Holdings. Prepaymenlln
LUwin Pari< Man tLC; RP BalMl Rosidenllll ConiuncliDri w!Ih Sr.
AI & IC1. 15.000.000.00 10.000.000.00 98A8'fo 9.1195,309.72 0 .00 10tI12017 NAI' 13.000% 90fA l __ -
lOl.9).FIb(7O ).0(1
Mea_l .... Laurtl M1ILP 3,550.000.00 3.550.000.00 5&25'11. 2,010,271.32 0.00 VII2OI7 NAP ) WooDs Faf1lO
l'('(8)1.5%(J)
1.25%(3) 1.OD%(3)
0.75%(3) 0.50%(3)
0.25%(3) 0(12) (Up
10 $4.000.000.000
IIZ1 A - HILT 0701 1 MonIhUBOR lftP-rallle -..
AI The fllacblone Gtvup 119.192 " .69 69. 192..".18 94.38% 0.00 1I11:molO 1111212013 -2.1I299S3621I8% penaI!rf BolA
LO(S) 1.5%(3)
1.25%(3) 1.00%(:11
0.75%(:1)
0.25'11.(3) 0(12) (Up
., $4.000.000,000
IZl A - HilT 0701 I MonIllUUOR prepayDble wfouI
A2 The 9lactsl0lie GnIup 46.983,095.07 46,983,O!l5.07 94.36% 44.521,219.&5 0.00 1111212010 1III:mol3 -2.02!l9S3&28lnl. pena!Iyt 90fA
.'-
lO(8)1.5%(3)
1.25%(3) 1.00%(3)
0.75%(3) 0.50%(3)
0.25%(3) 0(12) (Up
10 $4.000.000.000
IZZ A - HilT 0701 I MonIII UBOR Iftpa)'Db\e wfouI
A3
The __ Gmup
119,192,CO.79 69.192,.31),79 115,566.90..50 0.00 IIM2I2010 IIM2I2OI3 penaIIyJ BolA
lO(II)I.5%(JJ
1.25%(3)1.00%(3)
0.75YoIJ) 0Sl%(3)
0.25%(3) 0(12) IUp
10 54,000.000.000
:zzO-HIt.T0701 I MonIIILIBOR pn:payablewaul
01 The Blacbtane Group 25.858.447,0. 25,858.447,0. 24,503,486.50 0.00 1111212010 1111212013 penally) BolA
l0(6) 1.5"(3)
1.25%(3) I.OOOA(3)
0.7S"'(3)1l.!ICnI(3)
0.25%(310(12) IUp
'" 54.000.000.000
ZZ B- HILT 0701 IMonIhlJ8OR pn!pa)OItJIewl_
92 17.558.<1211.40 17 .558,.26,40 16.638.379.3S 0 .00 1111212010 IIM2I2013 2.0299S362Br4 penally) BolA
. .
'-'
;'
l'ul1:hasePrlceol
" ... Curnnt Funded Purcll.,., Price of Loan Inde. &tid
CUlftft' Funded Cumtnl Unfunded Bal"",,"eas 01
""' C"""nt
Margin, or Fiaed Prolec:llon T.ntIOI
>an NamelPtoJt
Balance as of Balance a. of Unit Price as 01 JlI4I.ZOaa (Intludillg Unfunded 8a1anco InHiai Sclledoded Extended Malurity Interes, lmake. wt\oklor
Name Bomower OiIginalll4lance lII4I2oo8 lII4I2003 lIlCJ2008 Accrued InloNS\) as of 3/1412008 Maturity Date 00' .. applicable) del_nea' Inlerim svk:.r
LO(6) 1.5'''(3)
1.25%(3) 1.00'1'0(3)

0.25"'(3) 0(12) (Up
10 $4.000.000,000

1 Monlh LlBOR prepapblewlOoA
83 The Bl.lCkslone 25,858.433.86 25,858,433J16 24.503.473.26 0.00 11/1212010 1111212013 2. 02t953S288%
LO(6) 1.5%(3)
1.25%(3) 1.00%(3)
0.75%(3)
0.25%(3) 0(12) (UP
_ C. HilT 0101
to $:'.000.000.000
I Month II00R prepayable wlaut
CI The 81X1<s1cne Gmup 25.858,447 B4 . 25,858,447.84
94.3G1'. 24.503,486.50 0.00 1111212010 1111212013 '2.0299538288% pmalttl BofA
lO(6) 1..5%(3)
1.25'%(3)
0.75%(3) O.so%(3)
0.25%(3) 0(12) (Up
\0 $4,000.000.000
Itt C HILT 0101
1 ManIh LIBOR
C2 The IJI>ej,sI_ Group 17.558,428.40 17.558.426.40 94.36% 16,638,379.35 O.DD 1111212010 1111212013 '2.0269536288% penally! BolA
LO(6) 1.5"(3)
1.25"'3)
0.75%(3) 0.50%(3'
0.25%(3) 0(12) (Up
10 $4.000.000,000
2ZC HIlT07D1
1 MonlIIllSOR pn:pay:IbIowtD&4
. C3
The 25.858.433.86 25,858,433.88 94.38% 24.503.413.28 0.00 ""212010 1111212013 2.029953fl288% ponaIIyI
LO(6) 1.5%(3)
1.25%('3) 1.00".(3)
0.75%(3) 0.50%(3)
0.25%(3) O(I2)IUp
to $4.000.000,000
zzOHIlT0101
I MonII\ UBOR
01 The Group 25,81i8.447.84 25.858.447.84 94.33% 24.495.405,74 0.00 1111212010 ''''7120,3 2.021l9536288'lfo fID"'IIYI
801A
LO<6) 1.5'1'(3)
1.25%(3) 1.00%(3)
0.75%(3) 0.50%(3)
0.25%(3) O(I2)1UP
(g $4,000.000,000
IZ O. HILT 0701
I MonIhIlBOR
02 The 8laebtme Gn>up 17.$58,426.40 17,558,426.40 94.34% 16,&35,635.84 0.00 1 "'212010 1111212013 2.0299S3fl288'" penallyl BcfA
L0(6) 1.5%(3)
1.25%(3) 1.00%(3)
0,75%(3) 0.50%(3)
0.25%(3) 0(12) IIJp
10 $4,000.000.000
:t o HILT 0701
I MonIIIlIBOR propiIyaI>Ie "'out
D3 25.858.433.88 25,858,433.86 94.34% 24.499,432.88 0.00 ,,,,2120,0 ,,,,mo'3 Z.029!15J6288% pena!Iy)
Purdlase PtIc. 01
\he Curnn. Fun_ Purdlne Price of Loanlnd ... and PrepayrlNlnl
Cul11lfltFundod Cunen. Unfunded as 0' lIIeCunen. MargIn, or fIxed ProloCtIon Tenn.
oan NamclProlact Balance as of B.1lanc.c 01 Unlt Priu as of 311412008 (IncludIng Unlunded InlUal Sdleduled Ea'ended Ma'Uflty In'eresl Rale (as (m ...... wllole or
Name BClrower Ol1glnal Balance 311412008 3I14I2G08 3114121108 Aruod In.erest) a. of 3I14IZQOB Malurity Dale Dale appllc.ablct) defeasance) Interim Sel'Yil:ar
LD(6) 1.5%(3)
1:25%(3) 1.110%(3)
0.75%(3)050%(:1)
0.25'K(3) 0(12)IUp
to $4.000.000;000
kIZ2: E - HILT 0701 lMMlIBOR
prepayabIe -
EI Tho IlIaCksl""" Group 25.858.447.84 25.858.447.84 04.34% 24.499.446.12 0.00 111"12010 1111212013 2.029953Q2118% penallyl BolA
LO(6) 1.5%(3)
1.25%(3) 1.0In'0(3)
0. 75'K(3)050%(:1)
0.25%(3) 0(12) !up
'0 $4,000.000.000
Ian e - HILT 0701 I MonrtoUBOR
prepayabIe -
E2 Tho lIlachIune Group 17.558.426.40 17.5511.428.40 04.34% 16.635.635.84 0.00 1111212010 1111212013 "2.0299536288% penally) BotA
LO(8) 1.5%(3)
1.25%(3) 1.IXI%(3)
0.75'K(3) o..5CI%l3)
0.25%(3) 0(12) [Up
10 $4,000.000.000
e:z:z E -HILT 0701 I_LIBOR
pftINIJabIc -
E3 Tho BladtolMo Group 25.8S1,433.88 25.858.433.88 94.34% 24.499.432.88 0.00 1111212010 1111212013 +2.02995311288% penally) BolA
LO(B) 1.5%(3)
1.25%(3) 1.110%(3)
0.75'K(3) 1I..5O%(l)
0.25%(3) 0(12) !up
to $4.000,000.000
taF - HILT 0701 I MonIh UBOR
FI
Tho __ Gnlu;>
112.1l53.77I.311 112.053.271.30 94.45% 106,286.822.27 0.00 1111212010 1111212013 '2.0299536288% pena:tyI BOlA
LO(S) 1.5%13)
1.25%(3) 1.00%13)
0.75%13) 0.50%13)
0.25%(3) 0(12) !up
10 $4.000.000.000
'r' ,a F - HlLT 0701 I MonIhUBOR prq>aJaIlIewlout
F2 The BIac:IcsIono Group 78,086,5IS.75 76,C8G,SI5.75 94.45% n,I70.97B.21 0.00 1111212010 1111212013 ,2.0299536n8'lC0 pa>alyI Bo1A
LO(6) 1.5%(3)
1.25%(3) 1.D0%(3)
0.75%(3) 0.50%13)
0.25%(3) 0(12) !up
10 $4.000,000.000
tz F - HILT 0101 I MonIh UBOR pn!pay.>bIo wtout
F3 The I!Iac:IaIoR8 Group 112.053,290.27 112.053290.27 94.44% 108.289,33'.94 0.00 1111212010 1111212013 +2.029953628B% penally!
LO(6) 1.5%13)
1.25%(3) U)0%(3)
0.75%(3) 0.50%(3)
0.25%(3) 0(12) !up
10 $4.000,000,000
rzG - HIlT 0701 I MonIh lIBOR prepayabIo wiout
GI The BbdtSlcne Gnlup 112.0$l.771.3Q 112,053.271.30 94AI% IOO,234,297.3Q 0.00 1111212010 1111212013 +:r.02995382118% penally) BolA
Purchao Price 01
"'" CulT'Oflt Funcfed purChase Price of loan Inda .anCS preplymen.1
CUm!nl Funded Cumtnl Unfunded &lanceaol IIIe Cu...,nc Mimi ... 0' fU..s Protection Tenn.
In Nlmo'PnIjecl
&llncel.ol Balznce of Unit PrIco ... 01 3IICI2OOI (lftcludlng Unluncl..s &lance Inilial Sd>c<S1de4 Ext_ad loU1urily Inl_ Rale (as
Name Bo....- 01191"" &lance 1II412001 1I1412OOi 1I141200e AotNed Inllmsl) H 011ll4l201le fUlurity Oole Oole aptlilcablel defeaancel Inlerlm SetW:er !
l0(8) 1.s%(:I)
1.25'14(3) 1.00'lI0(3)
0.1:i%(3) 0.50'''(3)
0.25%(3) 0(121 [Up
a: G HILT 0701
10 14.000,000.000
I MonlhllBOR

G2 Tho Group 78.088.515.75 78.086.515.75 04.41% 72,135.310.65 0.00 1111212010 1111212013 -2.0299536281n" penally! BolA
lO(8) 1.5%(:1)
1.25'110(3) 1.1)0%(3)
0.75%(3J 0.50%(3)
0.25%(3) 0(12) (Up
10 14.000.000,000
czGHILT0701
I MonlhUBOR
G3 Tho IIIoasl ..... Group 112.053.290.27 112.053.290.27 94.39% 106,216.806.96 0.00 1111212010 11I12J2013 penaIIyI BolA
lO(6) 1.5-"(:1)
1.25%(3) 1,ro,c.(3)
0.75%(3) 0.50%(3)
0.25%(3) 0(12) (Up
to 14,000.000.000
a: H HILT 0701
I MonIh llBOR wiaul
HI The Bladtslone Group 113,410,531.42 113.410,531.42 85.20% 11le.424,SI4.50 0.00 1111212010 1111212013 -2.0298536288" ponallyl BolA
l0(6) 1.5%(3)
1.25'14(3) 1.1lO'Y_(:I)
0.75"(3) 0.50%(3)
0.25%(3) 0(12) IUp
10 14.000.000.000
z HHIlT 0701
I MonIh U80R
H2 Tho III:Ic.tstone Group 77.00II.124.29 77.008.124.29 95.20% 73.622.718.16 0 .00 1111212010 1111212013
- 2.02995362811%
pen;dy/ BafA
lO(8) 1.5'110(3)
1.2$'110(3) U)0%(3)
0.75%(3) 0.50%(3)
0.25%(3) 0(12) (Up
1014.000,000,000
% H HILT 0701
I Mona. UBOR prepayaIIIe wlout
H3 Tho BI&dIatone Gruup 113,ClO,m.lI 113,410.552.38 05.20% 108.424,834.$4 0.00 1111212010 1111212013 penally) BolA
LO(6) 1.5%(3)
\.25%(3) 1. 00%(3)
0.75%(3) 0.50%(3)
0.25%(3) 0(12) (Up
11114.000,000.000
I MonIII U80R
T ME2:ZI AI II 22.152.%25.55 22,1152,225.55 22.233.1178.91 0.00 1111212010 1111212013 ... .2500% pen3IIyI earl\
LO(B) 1""(:1)
1.25'14(3) 1,ro,c.(3)
0.75%(3) 0.50%(3)
0.25%(3) 0(12) (Up
to 14,000.000.000
cJ - HILT 0701 I_UBOR poq>ayabIc wloul
J4 Tho BIacbIone ar.,.., 33.2110.731.92 33.280.731.92 97.84% 32.788.882.96 0.00 1111212010 1111212013 - 7500%
penally! BolA
Jjcd DoIjIlh
I MonIh USOR 0.75% (12)10.375%
MaZzA _eta"" Gn>up 2,0C3.141I.86 2.043.1411.86 B7.23'11. t.789,258.11 0 .00 511212009 511212011 -1.2500% (6)Open BolA
Pun:haePllooor
IIIe Curront Func:104 Pun:haa PIle. of Loan Inde& Iftd Prepayment
Cunent FWlded Currant Unfunded B.JWu:e as of IIIe Cutretli MalVlft. DI l'lIod P ...
an NameJProlKI B.Jlanco aa 01 DaIanCO as 01 UIIU Ptlcoao01 lII4I20ll81\nClucliog Unfundod Dalanco Inllial Scltedulod I!lIIendod Malurity 1 .. I ...... tlble I" lmab-wllole or
Name Bonower Otlglnal Balanco lII4I2OO8 lII4I2OO8 lIl4IZOGB AcCNod Inter.,.,) as 01ll14l2008 Malutlly Dale Dale applicable, defeasance) Inlorim Satvieer
""""on Cullogc
alii - Mclzanlna I ManIhUBOR LO(12)/1.0%(6)IO.5%
LOiII'I CreSCOfllI101e1s 5,000,000.00 5,ClOO,ooo.00 75,95% l ,814,!J30.m 000 311212010 311212012 01.4000'lI0 (6)/0(12' BelA
I ManIon """'0'0 I McnIIIllBOR
.!I_ &net IteSOtts, UC lO,OQIUIlO..OO 39,000,000.00 28,9:18,710.57 0 .00 6IT2I2tlO9 6112n012 1.0(12)10(12' BolA
het3I ... _
GR&SAIIanIic 8ead> Mett I MIuIII\ UBOR lO(I2)it
Bauh-Mezz U.C 0 ,000,000.00 6,000,000.00 78.41% 4 ,725,571,00 0.00 511212010 511212012 -1.50lI0% (&)10(12' SalA
1.0%(12)1O.9%(I}IO.8
%(I)IO.7%(I)IO.n(I)
joel SIWJI - ""'v:
SmafI 0\ F' ..... PropertIeS 1/ IMoftIhUBOR 1O.5%(I).O.4%{I)IO(8
Al ..... U.C II,oee.330.99 II,Cl68,3lO.99 10,887,230. 11 0 .00 6/1012009 611012C112 -3.1lCIOO'4 )
BelAr..; ,
,
lO(8)'1 JIO'Yo(3)1O.7S :,','
%f.J)/O(12) (.., 10
S61SmiiooI
,mIcd Slay HotelS
I Morel L180R prepapIIIe wriIIoouI
Men A The ligIIWone Gtoup 77,010,000.00 77,010,000.00 79. 30% 61,342,7&6.88 0.00 611212OQ9 811212012 -I.SODO% penally)
lO(li)lI,DO%(3)IQ.75
%(3)IO{12) (upID
S67SmilIon
-., St.y HoIaIs
I Mcx1Ih LlBOR ."....,-......
MezzO The LI<J!I'SIDne c;..,.., I02,8m,ooo,oo 102.680,000.00 81.81% 84,373,399,57 0 .00 6/1212009 1lI12I2C112 -I..5ClOQ% penally) WacII<JVb
lO(8)lI ,00%(3)IQ.75
"11.(3)10(12) (lip 10
$875_
nclod Slay Hotels I ManlhUaOR prq>ayabIa
MczzC Tho IJgIdsIono Group 102,8110.000.00 102,680,000,00 81,17% 83,735.571.37 0 .00 611212009 811212012 -1.7_ penally) W.d" ....
LO(B)lI .IlO%(3)1O,75
%(3itO!I2) (lipID
S875ri5an
_SlayHOltU I MonIhUBOR
MezzO The liglllSUlne Group 102,680,000.00 102,&811.000.00 80.23% 82,792,911,93 0.00 6/1 '2I2II19 811212012 .Z.AIOOO'I6 pe.mIIy) WathMa
L0(6)II.oo%(3)IQ. 75
%(3)10(12) (lip 10
$875 miIIIcn
nded Slay I MaI1Ih uaOR Pf'CIII'IYIIbIawahou\
MczzE Tho lighIsIIlne Gtoup 102,1180,000.00 102,680,000.00 77.42% 79,925,002.49 0.00 6/1212009 611212012 -2.2500% Wadr"
LO(8)lI.D0%(3).O,75
%(3)10(12) 10
$875 IIII1icn
1Ilo<:l Star HOIcIS I Mon1I1 UOOR prepay.dJIe MhouI
MB:zz "
The LlghIsIOno Group 102,680,000.00 102,680,000.00 1 .se" 77,008,961 .79 0.00 6/1212009 6(1212012 .l.5IlOO% penally) Wac:hcMa
LO(B)l.IJJII%{3)II),75
'4(3)10(12) (lip 10
S875_
oded 51., Hotels lM ...... UOOR

MozzG The Ug/II_ Group 102,880,000.00 102,680.000,00 76.31'" 78,1105,689.57 0 .00 6/IZI2OOO 811212012 -3.7500% JIC""'IIY)
w_
lO(O)/I.1lO%(3)1O. 75
%(3)10(12) (up 10
$675 million
oded 51"1 HoIels I MonII1UBOR pn:pay.!IlIa wIIIIouI
MozzH Th. UghlStcno Group 25,1170.000.00 25,870,000.00 BB.!lI% 17 ,336, 794.96 0.00 611212009 811212012 -S,OOOO% pemlt,) Wac:hcMa
L0(8)/1.00%(3)t'O,75
%(3)10(12) (up ID
$675 m1I:ion
lied Slay Hotels I MarlIh llBOR ptepqaIIIe ..-.-
Mezzl-A. The UgNSII:ne Group 12,1135,000.00 12,835,000.00 8,47&.852.93 0 .00 6/1212009 1111212012 -S.5OClO% penally)
\
Purchase Price Of
I
U"' Cu .. ",,1 Fund4>CI Purcha.., Pricor Of loan Inde. and PRPlymenl
c.m.nl Fu nded Currenl Unfunded (blance:ors Of the Cutnllnt Margin. or Fb<.'d ProtOCCion T_
I&n NamelProlect
B.lance as of Boolanc. as 01 Unll Price as 01 lII4I21I08 (Including Unfunded B.lance Initiol Scheduled extended Maturity Interesl Rate (as (_"e_ClIaCl<
N.me 80tnnftf Origin.' (blanc. 3IloU2ODfI 311412008 lIloU2Ooa Accrued 'nle""'l) 001IIU2CI08 Malurity 0.1<1 O.le .""Hcable)
defuSIOnc_) In18rim Servicer
l0(8)/I.oo%(3)1O.75
%(3)1O(IZ)(1Ip1o
U75 ... 1Iion
rentIed Star HCllek
I MonlllllBOR
MeZZIO The UgI11_ G""4' 12,835.000.00 12.835.000.00 65.38'A. 8.488.835.71 0.00 611211009 61IZ12012 <fI.5OOO'A. penally) WlIdlcMI
1.0%(12)10(13) (no
lee II prepay in
c:omedion wi!II
UCR ReINnc:e
1 MonIft ll80R release af Sale
Men:riIe 113 The Il1acksIone 6""4' 19.036.1196.00 19.038.1196.00
90.9%"" 17.378.4IlO.88 0.00 '1.6500'''
PnJpcrty) WadIcMa
1 MOft1I\lIBOR Spte.ad Mairllen:II\CII
oled HesI Men 1 IIP/AJM Mom!nino '. LLC 13.499.200.00 13.499,200.00
91,64'" 12.422,429.19 0.00 9I!lI2OOO !II9I2012 '1.8000% /%(12)/1.0",<6)10(8) 8<....
I'1IjccI MIyIIoMr
1 """lIBOR 5,,",ad Maire""""""
a1ing Rolle Men 1 RRDoIMenVl. llC 34.850.000.00 34.850.000.00 93.81% 32,893.zo7.35 0.00 91IZ12OO9 91IZ12012 '4,2500",6 (12)0.5".4(6)10(6) BolA
rojcct T Olicago
1 MonIh lIBOR lO(6)l1.0"'(6)IO.S'4(
MeJ:zA llsIIman Speyer 59,750.000.00 59.750.000.00
93.78'" 58.812.037.27 0.00 9l912000 91912012 <2.5000% 6)10(6) BolA
Project Malrix
....... edion HPT
IM_lIBOR
17 Mel2.A The lighI"-' G""4' 5.436.906.00 5.436.906.00 95.20'..6 5.180.219. \0 0,00 8I9l2OO9 1II!l'2012 L0(Z4) Wac:I'oIWia
1 MordIIlIBOR Spread MainIenonca
'Iea' No.st Men 2 AI'/AlM Mea.mn. II. LLC 76.700.000.00 76.700.000.00 91.56% 70.:;22.062.14 0.00 91912009 91912012 t.8O:OO% I%( 12)11.0",<8)10(6) BolA
I MonIh LIBOR Spread
.Jcct Nest 1.1<>%% 3 AI'/AlM Man"""", III. llC 78,700.000.00 . 78.700,000.00 89.30"4 68.784.327.77 0,00 91912009 911112012 '1 .8000'..6 1%(12)11.0%(6)10(6) BolA
I ManIII LI80R SpNd fotMIen:II'Ce
ojeCI Nest Mon4 AI'/AlM Mc.tt:Irint !V.llC 78.700.000.00 78.700.000.00 84.25"- 84.913.374.64 0.00 91912009 9N2012 <1.8OOCI% 1'11(12)11.0%(6)10(6) BolA
'Cjed T CIticogCl
1 MonIhLIBOR lO(6)l1.0'..6(6)IO.5'%(
ManC 1lsIwnan Speyer 83,475.000.00 83.475.000.00 97.38'..6 6t.752.117.15 0.00 9IlII2009 91912012
8)10(6) BolA
.,)cd T CIIicugo
1 MOIIIhLI8OR lO(6)lI.0'l6(6)/O.5%(
MeZZD 1lsIuNJn Spe,er 83.475.000.00 83.475.000.00 116.30% 80.862.889.60 0.00 !11!112000 911112012 '2.5OC1C1%
8)10(6) Be
oIed T CIIiaago I""""",USOR LO(6)lI.0'l6(6)IO.5"'C
MeInE rtSt\mar>Spoyor 83.475.000.00 83.475.000.00 00.75% 81.035.831.83 0.00 9I9l2OO9 O/!l12012 <2.5OC1O% 6)10(6) BolA
1 MCInIh LI80R Spread MaitIIonance
jed Nest Mezz 5 AP/AlM Mez2anlne V. llC 25.400.800.00 80.72% 20.&00.448.18 0.00 9/912009 91912012 <1 .8IlOO% 1%(12)/1.0%(6)10(6) BolA
1 MCIIIII'IltSOR Spread MaIftteMnaI
ding RIle Maz;f 2 Mc!>z 1M. LlC 38.970,000.00 38.970.000.00 9108% 38.489,59"'7 0.00 911212009 9/1212012 '4.2500"- ( 12)0.5"'16)10(0) BolA
1 MontIIllBOR Spread t.C3inIenanca
R-RoorMer:t 1118. UC 45.180.000.00 e.18O.000.00 92.e% 42.029.022.56 0.00 911212009 9/1212012 <4.25017% ( BolA
'noted MaIr\I(
un:c:6on HPT IMonIIIllllOR
17MezzB The Ug!It._ Gtoup 5.390.700.00 5.390.7DO.00 99.20% 5.351.822.57 0.00 8I9I2D09 81912012 <2.4000%
'rofeCI t.WIIx
IUIItlCIian HPT IM_lIBOR
I7MezzC The UDIUs\one Group '5.390.700.00 5.390.100.00 89.23% 5.353.507 .16 0.00 8I9I2D09 81912012 <2.4000"- l0(24) Wac:hovIa
IjecI T CNc:Igo IMon/7IUBOR lO(8)lUI"4(6)IO.s,,(
MeaF 'IloIIman Spqw D.475.000.00 D.475.ODO.00 96.91% 80.918.56421 0.00 9I9l2OO9 9l1li2012
6)/0(6) BolA
IjedTObpa 1 MontIIUBOR
MelZG T11tIman Spey.o< 70.850.000..00 70.850.000.00 05.76% G7,8D.I44.44 0.00 91912009 !IIII12012 '2.5000%
6)10(6) BolA
8ft NamolPtGjoct
NIII'IO
rujec:I r Clbcago
MozZH
~ . 0riQ;naI Baltnce
55,872,OCS.oo
CulTOnl Funded
Balanco as of
:111412008
55.872,046.00
3.1119.745.4111.00
Purchase Prica 0/
tIIo C"""nl Fundrd
CulTOnl Unfllnd..t Balance as 01
S.lance ol Unit Price as 01 1I1412DOS pndudlng
:1114I2l101 1I1cnGOa AeCNed Inlen>Gl,
1 7 4 . ~ 7 . 9 ~ . 0 0 52,;1S7.BIO.23
174.7.954.00
PI.ln:ltaIO Price of Loan Indo. and p ..... ymonl
tile CU!Tellt Ma,gin, Of' F'acod Protection ronns
Unlundod Balane<o Initial Sd>oduled E.denolGd Malurtt, Inlatnl Rollo (ea (maJo>.whole fW
;as 0/ 1I1412DOI MaluriIyD .... Data appllelble, doleau"..., IIIlorim Sonrie.r
I MonIh UBOR 1O(B}lI .O%(6)IO.5%(
183.80S.515.5O +2.SOOO% Il)10(8) BofA
161,.895,515.50
SCHEDULED
LIST OF MORTGAGED PROPERTIES REQUIRING REPLACEMENT COMFORT
LETTERS OR CONSENT TO TRANSFER
Schedule D-l
[TPW: NYLOOAL:7S6S66.19] 86000.00992 O6I2S/200B 06:44 I'M
i .
't.":: ... ;
Loan II Prop_cr!Y
52208 (Me7Z 4)
52274 (Me7Z 5)
50804 (Mtg) Project Nest - Embassy Suites Columbus-Dublin (Dublin., OH)
51908 (Mezz 1)
52206 (Me7Z 2)
52207 (Mezz 3)
52208 (Mezz 4)
52274 (Mezz 5)
50804 (Mtg) Project Nest - Embassy Suites Boston at Logan Airport (Boston, MA)
51908 (Mezz 1)
52206 (Me7Z 2)
52207 (Me7Z 3)
52208 (Mezz 4)
52274 (Mczz 5)
50804 (Mtg) Project Nest - Embassy Suites Cincinnati - RiverCenter (Covington., KY)
51908 (Me7Z 1)
52206 (Mezz 2)
52207 (Mezz 3)
52208 (Me7Z 4)
52274 (Mezz 5)
50804 (Mtg) Project Nest - Embassy Suites Cleveland - Rockside (Independence, OH)
51908 (Mezz I)
52206 (Mezz 2)
52207 (Me7Z 3)
52208 (Mezz 4)
52274 (Me7Z 5)
50804 (Mtg) Project Nest - Embassy Suites Tampa - AirportlWestshore FL)
51908 (Meu 1)
52206 (Mezz 2)
52207 (Me7Z 3)
52208 (Me7Z 4)
52274 (Me7Z 5)
49704 Hilton Garden Inn Panama City -1101 U.S. Hwy. 231, Panama City, FL
32405
46654 Project Gator: Hilton Cocoa Beach - 1550 North Atlantic Ave. Cocoa
Beach, Florida 32931
46654 Project Gator: Hilton Clearwater Beach Resort- 400 Mandalay Ave,
Clearwater, Florida 33767
48288 Hilton Garden Inn Plymouth - Four Home Depot Dr., Plymouth, MA
02360
50820 Hampton Inn & Suites Savannah - 17005 Abercom Street, Savannah. GA
51067 Hampton Inn Onnond Beach - 155 Interchange Blvd., Ormond Beach, FL
50948 Hilton Garden Inn - Wisconsin Dells, Wisconsin Dells, Wisconsin
49603 Chicago Marriott 50 North Martingale Road, Schamburg,
Illinois
rrpw: NYLSOAL:761862.3) 8600().()()992 0612412008 12:S4 PM
SCHEDULEE
INVESTMENT BALANCES AS OF MAY 31, 2008
Schedule B-1
[Il'W: NYLEGAL:7S6S66.11l) ~ OiS/2SI200IUI6:44 I'M .
: ...;... _ 0.-::, =-------= _ __ : : ; , ; . . . . . ~ .
3 20 ,t BaIaIl<:H as of M4Y, I, oa
Current Unfunded Remaining Unfunded
Rn.nce Charge Amount (fot P ..
Cum", Funded B.alance !blance ... 0' Forward Commitments as Rat.. lock Rese_s .. s Third Patty Rese.".,s as the porlocl fram 311412008 tho p"n.
loan NameIProJed Name
80 __ ,
as of 513112008 513112008 0'612412008 0'(513112008) of [513'120081
through 513112008) ttlI'D'
Gatden Sial. PaWon 3 TlC's/ Cllerry Ie UC 1.2.3 0.00 0.00 0.00
G'lwu!ar VIrGinia S. UC. TIC SHORr PUMP 1. UC. TIC PUMP
2, UC, llC SHORT PUMP 3, UC, llC SHORT PUMP 4, UC, llC
SHORT PUMP 5, UC. TIC SHORT PUMP 6, UC, llC SHORT PUMP
7.llC,llC SHORT PUMP 9, llC,;'C SHORT PUMP 10.llC. TIC
Pare Place aI ShOtl Pump SliORT PUMP II, l 19.600.000.00 0.00 0.00
Vagabond Inn RPO Vag3bond Assodates G. UC 8,500,000.00 0.00 0.00
Uounta:ng1lle Forum .. UC;tJnion S_ Forum Hol6ngs.
FOIIlIII Center Mezz RPP UC:Spring SIreel F_ HoIdings.llC 924,800.00 0.00 0.00
Wdtlb Rei..:! PortfOlio Mett Mounlaing:Jle BCN HcI&ings. LLC, Uhan Bal Holdings II C and $pring
RPP Sln!et Sal HoIdinIJS, II C 1,387,2OD.00 0.00 0.00
MorItel Square II . .....,.". Morl<etsqwJnt I. LLC; I..aocy M4rIIdsquuro lI,llC 31.000.000.00 0.00 0.00
Crossroads Mall MMPCtoutoods, UC 60,249,739.00 0.00 0.00
Village at Moorpmt< Tho ViIago 41 Mootpart. U C 30.000.000.00 0.00 0.00
. HdIon Garden Inn PIymouIh HoIeIIrwestment. UC 10,207,834. 11 0.00 0.00
Baldwin Pat1t Mea AI & A2 (2) RP BaldwIn Retail Holdings, UC; RP IIa!dwin Rasidenlbl HoldIngs. UC 10,000,000.00 0.00 0.00
HcISdor Inn E.1ptIISS Sylaaluga Southam Slat Lodging, U.c. 3.252.790.11 0.00 0.00
Santa Rosa MaD SRM-SPE,UC 65,000,000:00 0.00 0.00
Eleven 80 1180 AsIro U/tIan RenewallnvtlStols UC 54,500.000.00 10.500.0011.00 10.500.000.00 735.000.00
101 ludlow Sired 101 ludlow llC 42.&09,462.92 20.390.537.08 17,645,851.51 3.067.928.89
Fan'lofts lbIiIton Street Assoc:Iatas.. LLC 2,300,000.00 0.00 0.00
lJ>urd MalI- Lo;m Law!!II Mall LP 0.00 0.00 0.00
HISon Inn 'Panarm C4y pllft3fII3 Ciy Group, UC 10,730.670.21 0.00 0.00
Ha6day Inn West Bank Weslbaftk PoIIners, UC 21.684,981.00 0.00 0.00
Hudson Preserve Hucjson Preserve Operational UC 40,000,000.00 0.00 0.00
Miraval Mitav.- Rnott Tucson, UC 54,180.000.00 0.00 0.00
0"" Financial Plaza Parmente' 0 ... FinancIal Plaza LP, ULP 35,750,000.00 0.00 0.00
Penn Oe1ro! Ponfclio Crvwn CotparaIIon 17.700.000.00 0.00 0.00
GnlnclsIay CbnanI GSRS Hc*!ings. UC 8.750.Il00.00 0.00 0.00
RDcbson - Jad<scnviIIe AMC 0I!Iancey SoutIIpaint P:atners. l P. 12,750,000.00 0.00 0.00
HIE Anderson eot 19B 5,953,126.84 0.00 0.00
9an T 2tlII & Gal GaI:P)r Ban Tara Holdings I, UC 0.00 0.00 0.00
AIbnIC Avenue Sall-Storoge AcadIa AIIantIc Avenue UC 176,886.48 15.973. 113.52 15,63U95.35 1.597,311.35
bmpIOn Inn & Suiles Savonn3h Shn:e Hari OHM Incol Savnh 8,942.972.26 0.00 0.00
Iran Mll UC: Iron ML D UC; Iron ML ID UC; Iron Mt..1V UC: lion Ml V
Iron Mountaln B-NoIe UC 1.500,000.00 0.00 0.00
11:>'.
HIlIDn GanSen Inn _ WISCOnsin
Deb 12,550.274.90 0.00 0.00
WeslbnIok PIazo WestbIOOk Development Co. 16,851,243.38 0.00 0.00
9Melrolectl FC FbIbuiIo Associ:lIes n, UC 78.929.094.90 0.00 419,260.00
Hatnplon Inn Ormond De3Ch POe Ormond Beech, UC 4.650.000.00 0.00 0.00
llC GaItIesviBa 1. uC: 11C Galnes.ale 2, LLC: and llC 3.
ComIOIt/M UC 4,425.000.00 0.00 0.00
Pelham Mano, P/IW.CADIA PEUiAM MANOR. UC. 17.302,262.40 18.361.737.60 18,361.737.60 1.830.173.43
13500 Huron MYM 13500 JC Properly Owne' UC 8,711.121.35 0.00 0.00
PlOjec:l Maylla.ire, FIXed A3 R-ROOf III. llC 138,594,825.81 0.00 0.00
PnlJecI Mayflower F'oced A28 R-ROOf I. UC, R-ROOf II. UC. R-ROOf III. UC & R-Rool Business Trust I 61.100.856.51 0.00 0.00
:;in:uiI ClIJ San Rafad B-Note smvest R ..... EState \I UC 1.600.000.00 0.00 0.00
Hold PoI1fo6o A-
88.212.soo.00 2 Inland Amerlcnn Real EsIaIe TIUSI.. Inc. (Sponsot Idenlified Only) 0.00 0.00
Mortgage - Hit T 0701 S 1 The BIadIsIone G1uup 49.970.033.PO 0.00 0.00
MorIQage - HilT 0701 52 The BbdtstOlle Gmup 072.529.675.00 0.00 0.00
MOIIguge - HilT 0701 S3 The Blac:kstona Group 588.646.989.00 0.00 0.00
MorIQoge - HILT 0701 Sot The BIDcksIona GnJup 273.9D3.262.00 0.00 O.DD
The BI3dcsIona Gccotp 534.180.146.00 0.00 0.00
MOIIIIoge - HfLT 0701 S6 The Bbc:IcsIono Gtoup 534.180.145.00 0.00 0.00
I
CulTetll Unfunded Remaining Unfunded
FInance CflatgCl Amounl (for
Pre-(;uto
Curren' Funded BalancO! Oalance 115 of Forward Commllrnent'J as Rate Lock Re ... fVl!S '""
Third Party Rl!SeM:s as the period ftam J/1412OO8
tho! peri
LIYR NomolProject N.lmo Bo_, as <Jf 513112008 U11I200a of 6/2412008 0115131/2008] 0115131/2008]
through 5131/200111
thro
MeizA HILT 0701 AI The 8Iacb1one Group 69.192.411.69 0.00 0.00
:t A - HILT 0701 A2 The BIacbtone Group .Q;.983.095.07 0.00 0.00
Me A-HlLT0701 Al The BladtSlonCl G/QIp 69,192,430.79 0.00 0.00
::; O HILT 0701 BI The BlDclts\one Qaup 25,856,44 7.84 0.00 0.00
B.HILT070lB2 The BladtstClno Graup 17.58.428.40 0.00 0.00
Maz:z 8 - HILT 0701 B3 The BIacksIane GtcoqJ 25.858,433.86 0.00 0.00
Meh C HILT 0701 Cl The 8bcbIonct Gtcup 25.858,447.84 0.00 0.00
Met. C - HILT 0701 C2 The Blacblctne GIup 17,58,426.40 0.00 0.00
Met. C HILT 0701 C3 The BIaclsIone Graup 25.856.433.86 0.00 0.00
....Jz o HILT 0701 01 0.00 0.00
ueU 0 HILT 0701 11:'e BIacksIono GIOup 17.58,428.40 0.00 0.00
M..h 0 HIlT 0701 03 :n-e Group 25.858,433.86 0.00 0.00
MenE-HlLT0701 El The Blackstone Gmup 25,858,447.84
0.00 0.00
MetzE. HILT 0701 E2 11IO! BIacbIone c;,cup 17.558,428.40 0.00 0.00
Me!z E - HILT 0701 E3 The BIacIIstofte Group 25.858.433.86
0.00 0.00
MBkF -HILT 0701 Fl The BIadoalOneGmup 112.053.271.30
0.00 0.00
MJz F - HILT 0701 F2 The siD_ Gmup 76,D88.51S.75
0.00 0.00
MekF. HILT 0701 F3 The BlacblDne Gmup 112.053.290.27
0.00 0.00
::lG-HA.T0701 Gl The Gtoup 112,053.271.30 0.00 0.00
M The BIadtsIone Group 76.088.515.15
0.00 0.00
Mdz G - HILT 0701 G3 The Btecloslone GRIUp 112,053.290.27 0.00 0.00
t ... ", .. ,
The Blado:stane Group 113.410,531.42 0.00 0.00
H HILT 0701 H2 The Blacl<5Ione Gmup 77.00fJ.124.29
0.00 0.00
M H HILT 0701 Hl The 1IIad<sI""" Gmup 113.410,S5U8 0.00 0.00
HoIEZZIAI() The B1acbfIone Group 22,952.225.55
0.00 0.00
Men J - HILT 0701 J4 The Blackstcne Group 33.280,731.92
0.00 0.00
:zo9-211 HClSlcttSlled 201211 Hesler SWeI 13,067,245.45 0.00 0.00
I BdAirLand 25,300,000.00
0.00 0.00
RH t:: 0eveC0pmctnt
Glen W1d Land Ccrnpany, llC 4,600.000.00
0.00 0.00
I .. aenll""" CadyIeICP MIJIibu LP 0.00 0.00 0.00
:::t I,.Qs Flores Trac:I
Coachel!a I.Jlnd 3811, UC 10.058,593.93 0.00 0.00
Sholl IllS Shopping Cenler Shalt HIls Town Center, LP 0.00
0.00 0.00
! Project Gala" The 8bdtsIctne Group 360.000.000.00
0.00 0.00
CO!n\et CJ4F a MnrqE Companr.L.P. 35.000.000.00 10.000,000.00 10,000.000.00 0.00
WDIIcI Resort
101 co Intemalional Olive EJ\IHG.llC 61.850;000.00
0.00 0.00
905 909 BmadSlteeI RI!H Group ParlnllllS XI. LP 6,380.000.00 1.500.000.00' 1.500.000.00 0.00
. CGIeg"Pa'" CntscefII Hotds 0.00 0.00 0.00
c{ne Ncw\h Wage 8050 Tahoe. UC 25.071.7110.09
0.00
0.00 .
t.\aJIIocI IPROCSCHAUMSURG.llC 40.000.000.00
0.00 0.00
HE! Fullerton UC, HE! u.c. HE! Romulus LLC, HEI Ncuaoss

llC, HEl NodIIwesIllC . 60,000.000.00
0.00
0.00
650 A...nuo Senior
I PlIIIlcip:otion I Weslpoc1 Group Inc. 38,591.238.52 2,960,188.37 2.960. 188.37 0.00
Allan\iC8each
GR&S Allanlic BeadI Halo! U.C 15,000.000.00 0.00
0.00
I'n:Ii<fS Oolpllin Ibz A : BbcksIone GIwp 2.043.148.86
0.00 0.00
I
APIAIM Sctstan SulIes,' UC, APIAIM 8urr Ridge, LLC. APIAIM CVG
Airpott, llC. APIAIM CIA Suites. U.C. APIAIM Dubin Suilos.llC
PmJe<f NeoI FIoaIin!I RIlle . APIAIM Independence Sillies. LlC. APIAIM Phoon1lc Suites. u.c,
,,::aa::s
e APIAIM Rlrircenler Lancfmmk. U.C l mD'" 370.000,000.00
0.00 0.00
'"'fed FIcIa&ng RDIe
I

R-RaofV1, LLC 158,645,112.00
0.00 0.00
Sh en CoQege Pall<
. mzan!no Loan CtesaInI Hotels 0.00
0.00 0.00

RP Really PailltefS, llC 48.000.000.00 6,000,000.00 6.000.000.00 0.00
EI ManiDU PofIfclio Mctzz lAIn HE! Holds und Resot1s. LtC 39,000.000.00
0.00 0.00
I
I
:hellllcn AllanQc 8cad1 Mezz GR&SAllanlic Beach Me: LLC 6.000.000.00
0.00 0.00
RINCON Ell REAL TV LLC. RINCON ET REAL TVu..c. and RINCON
RincanCemer ReSIOEHTlAL TOW!:RS LLC. 110.000.000.00
0.00
0.00
Cu""nl Unfunded Remaining Unfunded Finance Charge Amounillor Pre.CulOI
Cumlnl Funded Balance Balance 01 Forward Commitments as Rail! Lock Reserves as Third Party Reserves as lIIe pollod From 311412008 lIIopell,
LOAn Ha.....n>roiocl Hama Bonower .,1 of 113112008 513112008 of 6/2412008 of 1S/311200B} of (513112008) lllrough 513112008) III ... ,
G<eetIfieIc/ Sennce Cenler Gteenfteld Cenler InveslOls LLC 3,520.1100.00 0.00 0.00
Projed Sharp. Men A Loan SmDII & Final Properties IILLC 10,750.946.67 0.00 0.00
SI8r Holels Mea A The Lighlslone Group n,OIO,OOO.DO 0.00 0.00
Extended SIar HoIeis MIIZZ B TIle Group 102,680,000.00 0.00 0.00
Slar Holels Mezz C TIle ligll\sllOne Group 102,680,000.110 0.00 0.00
Stay HOlelS Meta 0 Tho Lighlslone Group 102,680,000.00 0.00 0.00
E>t1anded Sloy HOI"'" Mea E TIle Lightstone Group 102,680,000.00 0.00 0.00
E>t1ended Sloy HOld .. Mezz F The LightslonO Group 102.680 ,000.00 0.00 0.00
Ell1ended Sloy HOIels Mea G The UghlslOlle Group 102,680,000.00 0.00 0.110
Sloy Holel" Maiz H TheUghlslone Group 25,670.000.00 0.110 0.00
&tended SIar HOI..... Mezz I-A The lighlslone Group 12.835,000.00 0.00 0.00
&tended SI8r Holels Mea 1-0 The liglll!llone Group 12,835,000.00 0.00 o.QO
'rojed T Chlc:>go Mor1g0g0 A 1-
82 Toshman Speyer 22,500,000.00 0.00 0.00
L.XR Refinance loIe2Zanine 113 Thll8bd<slonc Group 19,036,1196.00 0.00 0.00
Chllny Hal patficlpation (Senior
PCWIion) Cheny Hal Towne Cen.", P8IIn<IIS, LLC 25,407,104.25 37,068,895.75 34,768,504.74 0.00
P/OjI>d NDSI Mea 1 APIAIM Mezzanine I. lLC 13,499,2(10.00 0.00 0.00
Mayftowet Floating Rate
MI!Z2 1 R-Roef Mea VI,LLC 34,554.688.00 0.00 0.110
Projed T CIIlc.1go Mez:z A TIShman S,...,,,, 59,750,1100.00 0.00 0.00
Qualter Citde Une at Cted'4 acc Fund 1.1.P. 1 (170.869.63 38,829,130.37 38,829,130.37 0.00
rojed Matrix Resunedion HPT
17 The LightslonO Group 27,595,250.00 0.00 0.00
12 Melrolech Originatioft
PaIIldpation 330 Joy Otke AlIsoci;dcs, lLC 20.125.000.00 4,750.000.00 0.110 0.00
rojed MaIIIx Resunedion HPT
17 MezzA The Ugldslone Group 5,436,906.00 0.00 0.00
Projed ""'II Mezz 2 APlAIM Me:anlne II, lLC 78,700,000.00 0.00 0.00
Projed Hal Mozx l IJ'IAIM m,u..c 78,7l1li.000.00 0.00 0.00
Projed Nest ""= 4 AP/AIIII M=nIne IV, lLC 78.700,000.00 0.00 0.00
Project T Chicago Mea C llshman Speyer 83.475,000.00 0.00 0.00
Projed T Chicano Mezz 0 Tos/Iman Speyer 83,475,000.00 ODO 0.00
Prujed T Chic:lgo Mez:z E TISIIman Speyer 83,475,000.00 0.00 0.00
Prujed Ncrll Mea 5 AP/AIM Ut=anlno V, lLC 25,400,800.00 0.00 0.00
'rujed MaytIDwer Floating Rate
MeZZ2 RRoo( Mea vtA.LLC 38.&aO,oco.co 0.00 0.00
'rojed MayI!ower Rale
Mea 3 R-Roaf Mezz VIS, lLC 44.797,413.00 0.00 0.00
PRljecl Sharp - 0 Note 8mDII & FiNII PlOperUes I lLC 9,407.078.34 0.00 0.00
-ojed Matrix Rcsunedion HPT
17 Me:tzB The lighlslano Group 5,390,700.00 0.00 0.00
..,jed Matrix HPT
17 MeZZC . Tho UghlstCftO Group 5,390,700.00 0.00 0.00
Prujed T Chlc:lgo Meu F 'Ilshman Speyer 83,475,000.00 0.00 0.00
ProjecI T Chlc:lgo Mea: G Tbhman SpeJcr 70,850,000,00 0.00 0.00
Pru)ed T ChIcago Mo:rz H llshman Speyer 55,672,04B.00 174.327.954.00 174,327,954.00 573.655.00
"jed T Chk:ago Mortgage. A ,-
AI T1sIunan Speyer 155,000,000.00 0.00 0.00
ojecI T Chicago Mortgage - A 1
A2 TlShman Speyer 155.000,000.00 0.00 0.00
ojed T Chic;Jga Mol\gage. A2-
9 lIshman Speyer 45,000,000.00 0.00 0.00
Djed T Chieago Mortgage. AI
01 llshman Speyer 22,500,000.00 ODO 0.00
8,682,344,305.07 J40,lI81,5S&.59 330,525,261.94 8,229,328.67 0.00 57.101.562.28 20
FIRST AMENDMENT TO TRUST AND MASTER SERVICING AGREEMENT
This FIRST AMEND:MENT TO TRUST AND MASTER SERVICING AGREEMENT
(the "First Amendmenf') is dated as of April 7, 2010 and is by and between BANK. OF
AMERICA, N.A.. as Master Servicer (in such capacity, the "Master Servic:er''), and U.S.
BANK NA TIONAL ASSOCIATION, as Trustee (in such capacity, the ''Trustee'').
RECITALS
WHEREAS, the Master Servicer, the Trustee and BEAR STEARNS COMMERCIAL
MORTGAGE, INC, as Depositor (the "Depositor") entered into a Trust and Master Servicing
Agreement dated as of June 26, 2008 (the "TMSA'') to provide, among other things, for the
formation of the Maiden Lane Commercial Mortgage-Backed Securities Trust 2008-1 and the
issuance of Certificates representing percentage interests in the distributions allocable thereto, all
as more particularly set forth therein and pursuant to the tenns thereof;
WHEREAS, Section 12.03 of the TMSA provides, among other things, that the TMSA
may (and at the direction of the Controlling Party shall) be amended, supplemented or otherwise
modified from time to time by the Master Servicer and the Trustee, subject to certain tenns and
conditions set forth therein (which tenns and conditions have been satisfied or are not applicable
hereto);
WHEREAS, the Controlling Party has consented to the tenns of, and has directed the
Master Servicer, the Special Servicer and the Trustee to execute and deliver, this First
Amendment (as confirmed by the consent and direction of the Controlling Party set forth beneath
the signatures of the Master Servicer and Special Servicer, and the Trustee, below);
WHEREAS, the Holder of 100% of the Certificates has consented to the tenns of, and
has directed the Trustee to execute and deliver, this First Amendment (as confinned by the
consent and direction of the sole Certificateholder set forth beneath the signatures of the Master
Servicer and Special Servicer, the Trustee and the Controlling Party belOW);
WHEREAS, each of the Trustee, the Master Servicer and the Special Servicer has
confirmed that either it consents to the tenns, and the execution and delivery, of this First
Amendment, or that such terms and such execution and delivery do not have a material and
adverse effect on it requiring its consent (as confmned in Section 6 below); and the Depositor
has confmned that the terms, execution and delivery of this First Amendment do not have a
material and adverse effect on it requiring its consent (as confirmed by the acknowledgment of
the Depositor set forth beneath the signatures of the Master Servicer, Special Servicer, Trustee,
ControUing Party and Certificateholder below);-
WHEREAS, other than Bank of America, N.A. in its capacity as Special Servicer, there
is presently no other Special Servicer appointed under the TMSA;
1283782'-'
NOW TIlEREFORE, it is hereby agreed, for good and valuable consideration received,
as follows:
1. Definition!!.
1.1 In addition to terms that may be expressly defined elsewhere herein, any
capitalized terms used but not otherwise expressly defined in this First Amendment shan have
the meanings assigned to such tenns in the TMSA.
2. Amendments to TMSA.
2.1 Section 1.0 I (Definitions) of the TMSA is hereby amended by adding the
following defined term thereto (which shall be deemed to appear in the proper
alphabetical order therein): .
"First Amendment: That certain First Amendment To Trust And Master Servicing
Agreement dated as of April 7, 2010 by and between the Master Servicer, the
Special Servicer and the Trustee (and consented to andlor acknowledged by the
Controlling Party, the Holders of the Certificates and the Depositor)."
.
2.2 The following sentence shall be added to the end of Section 4.04(b) of the TMSA:
"For the avoidance of doubt, any such limited power of attorney referred to in the
immediately preceding sentence shalJ be furnished to (and in the name ot) the
ControJling Party pursuant to Section 4.04(g}, if so requested by the Controlling
Party (andlor, for the avoidance of doubt, to and in the name of any Operating
Advisor acting pursuant to Section 4.10, if requested by such Operating Advisor
or the ControlJing Pm:tY}."
2.3 The following is hereby added at the end of Section 4.10(0 ofthe TMSA:
"For the avoidance of doubt, neither the Trustee nor the Master Servicer sh811 be liable for any
action taken by it at the direction of any Operating Advisor on behalf of the Controlling Party as
contemplated hereby, for the failure to take any such action if it shall not have received
appropriate direction from any such Operating Advisor, or for any action taken by any such
Operating Advisor directly. In addition, any Operating Advisor shall take reasonable efforts to
notify the Master Servicer of actions taken directly by it that are material to the servicing of the
asset; provided that notwithstanding Section 12.06 of the lMSA, notices under the foregoing
sentence may be provided by email to the following designees of the Master Servicer,
CMSG _PMG@bankofiunerica.com and paul.kurzeja@bankofamerica.com; provided that Master
Sel'Vicer may designate substitute designees for purposes of this sentence (but never sllch Jhat_
tliereare moretliwftw6 designees at any time) by notice to Operating Advisor."
1213182'.'
2.4 The following new paragraph "(g)" shall be added to Section 4.04 of the TMSA,
appearing immediately after Section 4.04(f):
-2-
)
121J782H
"(g) (i) Notwithstanding any term herein to the contrary, the Controlling
Pany (and, for the avoidance of doubt, any Operating Advisor acting pursuant to
Section 4.10, each acting singly) shall have full power and authority to take any
and all actions, and to execute and deliver any and all instruments, agreements,
statements, certificates, notices, waivers, reports, consents, votes and other
documents of any and every kind or nature (collectively "Instruments"), and to
exercise, perfonn and carry out any and all the rights and powers, that the Master
Servicer, and/or any Special Servicer, is authorized to take, execute and deliver,
exercise, perfonn or carry out under or pursuant to this Agreement, for all
purposes under this Agreement, in each case as fully as if the Controlling Party
(and/or such Operating Advisor acting pursuant to Section 4.10, as applicable)
were expressly named as the Master Servicer and/or as Special Servicer, as the
case may be, hereunder. For the avoidance of doubt, the foregoing shall include
without limitation full power and authority to take any actions, and to execute
and deliver in its own name or in the name of the Trust, on behalf of the
Certificate Holders, the Trustee or any of them, any Instruments, that the Master
Servicer is or would be permitted or to take, execute and deliver
pursuant to the terms of Section 4.04(b), or pursuant to any limited power of
attorney that may be furnished by the Trustee pursuant to the tenns thereof,
and/or that any Special Servicer is or would be permitted or authorized to take,
execute and deliver pursuant to the terms of Section 4.08 or pursuant to the terms
of any Special Servicing Agreement
(ii) In dealing with any Operating Advisor acting pursuant to Section 4.10 for
purposes of this Section 4.04(g), the Trustee shall be entitled to rely and act
conclusively upon the information provided pursuant to clauses "(ii)" and
"(Hi)"of the last sentence of Section 4.1 O(a).
(iii) The Master Servicer shall not be responsible or liable for (and, for the
avoidance of doubt, neither shall the Trustee nor any Special Servicer have any
responsibility or liability for) any actions or omissions of the ControUing Party
(or any Operating Advisor acting on its behalf pursuant to Section 4.10), and
Master Servicer shall not (and, for the avoidance of doubt, neither shall the
Trustee nor any Special Servicer) be under any duty or obligation to monitor or
supervise the actions or performance of the Controlling Party (or any Operating
Advisor acting on its behalf pursuant to Section 4.10), under or pursuant to this
Section 4.04(g).
(iv) For the avoidance of doubt, it is hereby expressly acknowledged that (i)
Section 4.10 authorizes and pennits each of the Trustee, the Master Servicer, any
Semcer. UJe Paying Agent, the Depositor and the Certificate Registrar-to
rely on the appointment and authority of any Operating Advisor for all purposes,
including without limitation all purposes under this Section 4.04(g), and (ii) each
of the Master Servicer, any Special Servicer, the Trustee and any third party shall
in all instances be entitled to rely conclusively upon the power and authority of
the Controlling Party (and, for the avoidance of doubt, any Operating Advisor
-3-
appointed pW'Suant to Section 4. I 0) under and pursuant to this Section 4.04(g)
without further inquiry or investigation of any kind.
(v) Any and all agreements, Instruments and other documents of any kind
executed and delivered by the ControUing Party (or any Operating Advisor) in
the name or on behalf of the Trust prior to the effective date of the First
Amendment, shall by virtue of the execution and delivery of the First
Amendment be deemed to be authorized and ratified for all purposes under this
Agreement.
(vi) The ControUing Party, and any Operating Advisor acting pursuant to
Section 4.1 0, as the case may be, shaH be authorized and permitted, without
implied limitation, to execute and deliver Instruments in the name and on behalf
of the Trust, and on behalf of the Trustee (solely in its capacity as such and not
individually) pursuant to Section 4.04(g)(i) in substantially the following form, as
applicable:
(1) If executed by the Controlling Party:
U.S. Bank National Association not individually
but solely as trustee for the Maiden
Lane Commercial Mortgage-Backed Securities Trust 2008-1
By: Federal Reserve Bank of New York.
as Controlling Party for the Maiden Lane
Commercial Mortrage-Backed Securities Trust 2008-1 [,
Attorney-in-Fact]
By: ________________________ _
Name:
Title:
(2) If executed by an Operating Advisor:
U.S. Bank National Association not individually
but solely as trustee for the Maiden
Lane Commercial Mortgage-Backed Securities Trust 2008-1
By:
1
- - ~ - - ~ - - ~ ~ - - '
as Operating Advisor to the Maiden Lane
-Commercial.Mortpage-Backed Securities Trust 2008-1 [,
Attorney-in-Fact]
Bracketed terms are optional, at the discretion of the signer.
Insert name of the Operating Advisor in the blank space.
Bracketed terms are optional, allhe discretion of the signer.
I 28)182H -4-
By: ____________________ __
Name:
Title:
(vii) For the avoidance of doubt, neither the Controlling Party nor the
Operating Advisor has any duty to any party to exercise the powers and
authorities provided hereunder. .
2.5 The following paragraphs "(h)" and "(i)" shall be added to Section 4.10 of the
TMSA, and shall appear immediately after Section 4.1 O(g):
(h) Any revocation or termination of the appointment of any Operating
Advisor shall have no effect with respect to any and all actions taken by such
Operating Advisor prior to the effective date of such revocation or resignation, .
including without limitation with respect to any and all Instruments executed or
delivered pursuant to Section 4.04(g)(i) and any other notice, consent, approval,
waiver or other act or exercise of rights or powers taken or given prior to the
effective date of such revocation or resignation, and which were authorized at the
time when taken or given, each of which shall remain valid and in full force and
effect.
"(i) Any Operating Advisor appointed pursuant to the terms of this
Section 4.10 shall, without implied limitation, also have the powers and authority
described in Section 4.04(g), and expressly described elsewhere in this
Agreement, for all purposes under this Agreement.
3. Except as expressly amended hereby, the TMSA otherwise shall remain in full
force and effect.
4. This First Amendment shall become effective as of the date first written above
upon the execution and delivery hereofby the Master Servicer, the Special Servicer and the
Trustee, and the execution and de livery to the Trustee of copies hereof by the Controlling Party,
the Holder of the Certificates and the Depositor, signifying their consent, direction and/or
acknowledgement, as the case may be, as provided below. .
5. For the avoidance of doubt, by its execution and delivery hereof the Controlling
Party hereby expressly confirms that it does not require as a condition to the execution and
delivery of this First Amendment that there be delivered to the Trustee any opinion of counsel as
described in Section 12.03(e) of the TMSA.
6. By their execution and delivery of this First Amendment, each of the Master
Servicer, the Special Servicer and the Trustee hereby consents to the terms, and the execution
and delivery, oflhis First Amendment, or hereby confirms that such terms and execution and
delivery do not have a material and adverse effect on it requiring its consent under the TMSA.
7. 1l{IS FIRST AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
128l782S.S -5-
WITH THE LAWS OF THE STATE OF NEW YORK. AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK (OTHER THAN SECTION 5-1401 OF TI-IE
GENERAL OBLIGATIONS LAWS).
8. In case any provision of this First Amendment shall be determined to be invalid,
illegal or unenforceable, such determination shall not affect the validity, legality or enforceability
of the remaining provisions, each of which shall remain in full force and effect and shall not be
impaired thereby.
9. This First Amendment shall form a part of the TMSA for all purposes.
10. The signatories hereto may sign one or more copies of this First Amendment in
separate counterparts, all of which taken together shall constitute one and the same instrument.
11. Any headings appearing this First Amendment are for convenience of reference
only and shaJl not be deemed to effect or alter the meaning or interpretation of any provisions
hereof.
12. Each of the signatories hereto represents and warrants that it has caused this First
Amendment to be executed and delivered by its duly authorized officer.
13. For. the avoidance of doubt, and without implied limitation, it is hereby expressly
acknowledged and agreed that the execution and delivery of this First Amendment by the
Trustee, and actions taken pursuant to and in accordance with its terms, shall be covered by and
shall enj oy the benefits of the indemnification set forth in Section 6.11 of the lMSA.
14. For the avoidance of doubt, and without implied limitation, it is hereby expressly
acknowledged and agreed that the execution and delivery of this First Amendment by the Master
Servicer and the Special Servicer, and actions taken pursuant to and in accordance with its terms.
shall be covered by and shall enjoy the benefits of the indemnification set forth in Section 11.03
oftheTMSA.
{PAGE INTENTIONALLY ENDS HERE. SIGNATURES APPEAR ON NEXT PAGE.}
12837825.5 -6-
IN WITNESS WHEREOF. each of the undersigned has caused this First Amendment to
be executed and delivered by its duly authorized officer. intending the same to be effective as of
the date first above written.
BANK OF AMERICA, N.A., as Master Servicer
and Special Servicer


Title:
Date: Aprill., 2010
u.s. BANK NA nONAL ASSOCIATION.
as Trustee
By: _____________ _
Name:
Title:
Date: April-, 2010
The undersigned CONTROLLING PARlY hereby confinns that it consents to the tenns ot: and
hereby directs the Master Servicer, Special Serviccr and the Trustee to execute and deliver. this
First Amendment:
FEDERAL RESERVE BANK OF NEW YORK
as Controlling Party
By., ________________________ __
Name:
Title:
, Date: April-, 2010
111l'll2'" -7-
IN WI1NESS WHEREOF. each of the undersigned has caused this First Amendment to
be executed and delivered by its duly officer, intending the same to be effective as of
the date first above written . .
BANK OF AMERICA. N .A . as Master Servicer
and Special Servicer .
By:

Title:
Date: April--, 2010 .
U.S. BANK. NATIONAL ASSOCIATION.

Shannon M. Rantz
TItle: Vic), President
Date: April.L, 2010
The undersigned CONTROLLING PARTY hereby confinns that it consents to the terms of. and
hereby directs the Master Servicer. Special Servicer and the Trustee to execute and deliver. this
First Amendment:
FEDERAL RESERVE BANK OF NEW YORK
as Controlling Party
By:, __ ______________________ __
Name:
Title:
Date: April_. 2010
I:z&37W.S -7-
The undersigned HOLDER of 100% of the CERTIFICATES hereby confirms that it consents to
the terms of, and hereby directs the Trustee to execute and deliver, this First Amendment:
MAIDEN LANE LLC,
as sole Certificateholder
by Federal Reserve Bank of New York,
as Managing Member
By:
Name:A, t;;,
Title: Sl/p
Date: April ",2010
The undersigned DEPOSITOR hereby confirms and agrees that the terms, execution and
delivery of this First Amendment do not have a material and adverse effect on it requiring its
consent under the TMSA:
BEAR STEARNS COMMERCIAL MORTGAGE, INC.,
as Depositor
________________________ __
Name:
Title:
Date: April_, 2010
11Bl781S.S
-8-
The undersigned HOLDER of 100% of the CERTIFICATES hereby confmns that it consents to
the tenns of, and hereby .directs the Trustee to execute and deliver, this First Amendment:
MAIDEN LANE LLC,
as sole Certificateholder
by Federal Reserve Bank of New York,
as Managing Member
By:, __________________________ __
Name:
Title:
Date: April __ , 2010
The undersigned DEPOSITQR hereby confums and agrees that the tenns, execution and
delivery of this First Amendment do not have a material and adverse effect on it requiring its
consent under the TMSA:
BEAR STEARNS COMMERCIAL MORTGAGE, INC.,
as Depositor

Title: . Joseph e. Gaoghan
Date: ArIIIanilGIH,Dlroctor
12817&2',' -8-