Common use of SERVICER'S GENERAL POWER AND DUTIES Clause in Contracts

SERVICER'S GENERAL POWER AND DUTIES. The Servicer shall service and administer the Mortgage Loans and Companion Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII hereof and as otherwise provided herein and by the Code, have full power and authority to do any and all things which it may deem necessary or desirable in connection with such servicing and administration in accordance with the Servicing Standard. To the extent consistent with the foregoing and subject to any express limitations and provisions set forth in this Agreement and, in the case of any Companion Loan, the Pari Passu Intercreditor Agreement, the Servicer shall have full power and authority with respect to each Mortgage Loan and Companion Loan and each Mortgaged Property securing a Mortgage Loan or Companion Loan (other than any Specially Serviced Mortgaged Loan and the related Mortgaged Property or any REO Property) to do or cause to be done any and all things that it may deem necessary or desirable in connection with such servicing and administration, including but not limited to, the power and authority, subject to the terms hereof, (A) to execute and deliver, on behalf of the Certificateholders, the Trustee and each Companion Noteholder or any of them, customary consents or waivers and other instruments and documents (including, without limitation, estoppel certificates, financing statements, continuation statements, title endorsements and reports and other documents and instruments necessary to preserve and maintain the lien on the related Mortgaged Property and related collateral), (B) to consent to assignments and assumptions or substitutions, and transfers of interest of any Mortgagor, in each case subject to and in accordance with the terms of the related Mortgage Loan and (if applicable) Companion Loan and Section 8.7, (C) to collect any Insurance Proceeds and Liquidation Proceeds, (D) to consent to any subordinate financings to be secured by any related Mortgaged Property to the extent that such consent is required pursuant to the terms of the related Mortgage or which otherwise is required and to administer and monitor the application of such proceeds and awards in accordance with the terms of the Mortgage Loan and (if applicable) Companion Loan as the Servicer deems reasonable under the circumstances, (E) to consent to the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property or otherwise, (F) to bring an action in a court of law or equity to enforce rights of the Trustee, the Certificateholders and (if applicable) the Companion Noteholders with respect to the related Mortgaged Properties, (G) to execute and deliver, on behalf of the Certificateholders, the Trustee and (if applicable) the Companion Noteholders, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties, including agreements and requests by the Mortgagor with respect to modifications of the standards of operation and management of the Mortgaged Properties or the replacement of asset managers, (H) to obtain, release, waive or modify any term other than a Money Term of a Mortgage Loan or Companion Loan and related documents subject to and to the extent permitted by Section 8.18, (I) to exercise all rights, powers and privileges granted or provided to the holder of the Mortgage Notes and (if applicable) Companion Notes under the terms of the Mortgage, including all rights of consent or approval thereunder, (J) to enter into lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements which may be requested by the Mortgagor or the Mortgagor's tenants, (K) to join the Mortgagor in granting, modifying or releasing any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties to the extent such does not adversely affect the value of the related Mortgage Loan or Companion Loan or of the Mortgaged Property, (L) to execute and deliver, on behalf of itself, the Trustee, the Trust, the Companion Noteholders or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans or Companion Loans and with respect to the Mortgaged Properties, and (M) hold in accordance with the terms of any Mortgage Loan or Companion Loan and this Agreement, Defeasance Collateral. Notwithstanding the above, the Servicer shall have no power to (i) waive any Yield Maintenance Charges or Prepayment Premiums or (ii) consent to any modification of a Money Term of a Mortgage Loan or Companion Loan. Nothing contained in this Agreement shall limit the ability of the Servicer to lend money to (to the extent not secured, in whole or in part, by any Mortgaged Property), accept deposits from and otherwise generally engage in any kind of business or dealings with any Mortgagor as though the Servicer was not a party to this Agreement or to the transactions contemplated hereby; provided, however, that this sentence shall not modify the Servicing Standard. (a) The Servicer shall not be obligated to service and administer the Mortgage Loans or Companion Loans which have become and continue to be Specially Serviced Mortgage Loans, except as specifically provided herein. The Servicer shall be required to make all calculations and prepare all reports required hereunder with respect to such Specially Serviced Mortgage Loans (other than calculations and reports expressly required to be made by the Special Servicer hereunder) as if no Servicing Transfer Event had occurred and shall continue to collect all Scheduled Payments, make Servicing and P&I Advances as set forth herein and to render such incidental services with respect to such Specially Serviced Mortgage Loans, all as are specifically provided for herein, but shall have no other servicing or other duties with respect to such Specially Serviced Mortgage Loans. The Servicer shall give notice within three Business Days to the Special Servicer of any collections it receives from any Specially Serviced Mortgage Loans, subject to changes agreed upon from time to time by the Special Servicer and the Servicer. The Special Servicer shall instruct within one Business Day after receiving such notice the Servicer on how to apply such funds. The Servicer within one Business Day after receiving such instructions shall apply such funds in accordance with the Special Servicer's instructions. Each Mortgage Loan and (if applicable) Companion Loan that becomes a Specially Serviced Mortgage Loan shall continue as such until such Mortgage Loan and (if applicable) Companion becomes a Rehabilitated Mortgage Loan. The Servicer shall not be required to initiate extraordinary collection procedures or legal proceedings with respect to any Mortgage Loan and (if applicable) its related Companion Loan or to undertake any pre-foreclosure procedures. (b) Concurrently with the execution of this Agreement, the Trustee will sign the Power of Attorney attached hereto as Exhibit S-1. The Servicer, shall promptly notify the Trustee of the execution and delivery of any document on behalf of the Trustee under such Power of Attorney. From time to time until the termination of the Trust, upon receipt of written request of the Servicer, the Trustee shall furnish the Servicer with any additional powers of attorney and other documents necessary or appropriate to enable the Servicer to service and administer the Mortgage Loans including, without limitation, documents relating to the management, operation, maintenance, repair, leasing or marketing of the Mortgaged Properties. The Servicer shall indemnify the Trustee for any costs, liabilities and expenses (including attorneys' fees) incurred by the Trustee in connection with the intentional or negligent misuse of such power of attorney by the Servicer. Notwithstanding anything contained herein to the contrary, neither the Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Servicer's or Special Servicer's, as applicable, representative capacity, or (ii) take any action which has the effect of causing the Trustee to be registered to do business in any state. (c) The Servicer shall make efforts consistent with the Servicing Standard and the terms of this Agreement to collect all payments called for under the terms and provisions of the applicable Mortgage Loans and Companion Loans (other than Specially Serviced Mortgage Loans or REO Properties). (d) The Servicer shall segregate and hold all funds collected and received pursuant to any Mortgage Loan or Companion Loan constituting Escrow Amounts separate and apart from any of its own funds and general assets and shall establish and maintain one or more segregated custodial accounts (each, an "Escrow Account") into which all Escrow Amounts shall be deposited within one (1) Business Day after receipt. The Servicer shall also deposit into each Escrow Account any amounts representing losses on Eligible Investments pursuant to the immediately succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which are required to be applied to the restoration or repair of any Mortgaged Property pursuant to the related Mortgage Loan and (if applicable) Companion Loan. Each Escrow Account shall be maintained in accordance with the requirements of the related Mortgage Loan and (if applicable) Companion Loan and in accordance with the Servicing Standard. Withdrawals from an Escrow Account may be made by the Servicer only: (i) to effect timely payments of items constituting Escrow Amounts for the related Mortgage Loan or Companion Loan; (ii) to transfer funds to the Certificate Account to reimburse the Servicer for any Advance relating to Escrow Amounts, but only from amounts received with respect to the related Mortgage Loan or Companion Loan which represent late collections of Escrow Amounts thereunder; (iii) for application to the restoration or repair of the related Mortgaged Property in accordance with the related Mortgage Loan and (if applicable) the related Companion Loan and in accordance with the Servicing Standard; (iv) to clear and terminate such Escrow Account upon the termination of this Agreement or pay-off of the related Mortgage Loan or Companion Loan; (v) to pay from time to time to the related Mortgagor any interest or investment income earned on funds deposited in the Escrow Account if such income is required to be paid to the related Mortgagor under applicable law or by the terms of the Mortgage Loan or Companion Loan, or otherwise to the Servicer; and (vi) to remove any funds deposited in a Escrow Account that were not required to be deposited therein or to refund amounts to the Mortgagors determined to be overages. Subject to the immediately succeeding sentence, (i) the Servicer may direct any depository institution or trust company in which the Escrow Accounts are maintained to invest the funds held therein in one or more Eligible Investments; provided, however, that such funds shall be either (x) immediately available or (y) available in accordance with a schedule which will permit the Servicer to meet the payment obligations for which the Escrow Account was established; (ii) the Servicer shall be entitled to all income and gain realized from any such investment of funds as additional servicing compensation; and (iii) the Servicer shall deposit from its own funds in the applicable Escrow Account the amount of any loss incurred in respect of any such investment of funds immediately upon the realization of such loss. The Servicer shall not direct the investment of funds held in any Escrow Account and retain the income and gain realized therefrom if the terms of the related Mortgage Loan or Companion Loan or applicable law permit the Mortgagor to be entitled to the income and gain realized from the investment of funds deposited therein, and the Servicer shall not be required to invest amounts on deposit in Escrow Accounts in Eligible Investments or Eligible Accounts to the extent that the Servicer is required by either law or under the terms of any related Mortgage Loan or Companion Loan to deposit or invest such amounts in another type of investments or accounts. In the event the Servicer is not entitled to direct the investment of such funds, (1) the Servicer shall direct the depository institution or trust company in which such Escrow Accounts are maintained to invest the funds held therein in accordance with the Mortgagor's written investment instructions, if the terms of the related Mortgage Loan or Companion Loan or applicable law require the Servicer to invest such funds in accordance with the Mortgagor's directions; and (2) in the absence of appropriate written instructions from the Mortgagor, the Servicer shall have no obligation to, but may be entitled to, direct the investment of such funds; provided, however, that in either event (i) such funds shall be either (y) immediately available or (z) available in accordance with a schedule which will permit the Servicer to meet the payment obligations for which the Escrow Account was established, and (ii) the Servicer shall have no liability for any loss in investments of such funds that are invested pursuant to written instructions from the Mortgagor. (e) The relationship of each of the Servicer and the Special Servicer to the Trustee and to each other under this Agreement is intended by the parties to be that of an independent contractor and not of a joint venturer, partner or agent. (f) With respect to each Mortgage Loan or Companion Loan, if required by the terms of the related Mortgage Loan or Companion Loan, any Lock-Box Agreement or similar agreement, the Servicer shall establish and maintain, in accordance with the Servicing Standard, one or more lock-box, cash management or similar accounts ("Lock-Box Accounts") to be held outside the Trust and maintained by the Servicer in accordance with the terms of the related Mortgage. No Lock-Box Account is required to be an Eligible Account. The Servicer shall apply the funds deposited in such accounts in accordance with terms of the related Mortgage, any Lock-Box Agreement and in accordance with the Servicing Standard. (g) The Servicer shall not permit defeasance of any Mortgage Loan on or before the second anniversary of the Closing Date unless such defeasance will not result in an Adverse REMIC Event and the Servicer has received an opinion of counsel to such effect and all items in the following sentence have been satisfied. Subsequent to the second anniversary of the Closing Date, to the extent that the Servicer can, in accordance with the related Mortgage Loan or Companion Loan, require defeasance of any Mortgage Loan or Companion Loan in lieu of accepting a prepayment of principal thereunder, including a prepayment of principal accompanied by a Yield Maintenance Charge, if any, the Servicer shall, to the extent it is not inconsistent with the Servicing Standard, require such defeasance (or partial defeasance if permitted under the related Mortgage Loan or Companion Loan), provided that (i) the defeasance collateral consists of U.S. Treasury obligations, (ii) the Servicer has determined that the defeasance will not result in an Adverse REMIC Event, (iii) either (A) the related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer complies) to own the Defeasance Collateral or (B) the Servicer has established for the benefit of the Trust a Single-Purpose Entity to hold all Defeasance Collateral relating to the Defeasance Loans, and (iv) the Servicer has requested and received from the Mortgagor (A) an opinion of counsel generally to the effect that the Trustee will have a perfected, first priority security interest in such Defeasance Collateral and (B) written confirmation from a firm of independent accountants stating that payments made on such Defeasance Collateral in accordance with the terms thereof will be sufficient to pay the subject Mortgage Loan and (if applicable) the related Companion Loan (or the portion there

SERVICER'S GENERAL POWER AND DUTIES. (a) The Servicer shall service and administer the Mortgage Loans and Companion Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII hereof and as otherwise provided herein and by the Code, have full power and authority to do any and all things which it may deem necessary or desirable in connection with such servicing and administration in accordance with the Servicing Standard. To the extent consistent with the foregoing and subject to any express limitations and provisions set forth in this Agreement and, in the case of any Companion Loan, the Pari Passu Intercreditor Agreement, the Servicer shall have full power and authority with respect to each Mortgage Loan and Companion Loan and each Mortgaged Property securing a Mortgage Loan or Companion Loan (other than any Specially Serviced Mortgaged Loan and the related Mortgaged Property or any REO PropertyProperty and subject to the servicing of the Pari Passu Loan by the 99-C1 Servicer and the 99-C1 Special Servicer) to do or cause to be done any and all things that it may deem necessary or desirable in connection with such servicing and administration, including but not limited to, the power and authority, subject to the terms hereof, (A) to execute and deliver, on behalf of the Certificateholders, Certificateholders and the Trustee and each Companion Noteholder or any of themTrustee, customary consents or waivers and other instruments and documents (including, without limitation, estoppel certificates, financing statements, continuation statements, title endorsements and reports and other documents and instruments necessary to preserve and maintain the lien on the related Mortgaged Property and related collateral), (B) to consent to assignments and assumptions or substitutions, and transfers of interest of any Mortgagor, in each case subject to and in accordance with the terms of the related Mortgage Loan and (if applicable) Companion Loan and Section 8.7, (C) to collect any Insurance Proceeds and Liquidation Proceeds, (D) to consent to any subordinate financings to be secured by any related Mortgaged Property to the extent that such consent is required pursuant to the terms of the related Mortgage or which otherwise is required and to administer and monitor the application of such proceeds and awards in accordance with the terms of the Mortgage Loan and (if applicable) Companion Loan as the Servicer deems reasonable under the circumstances, (E) to consent to the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property or otherwise, (F) to bring an action in a court of law or equity to enforce rights of the Trustee, Trustee and the Certificateholders and (if applicable) the Companion Noteholders with respect to the related Mortgaged Properties, (G) to execute and deliver, on behalf of the Certificateholders, Certificateholders and the Trustee and (if applicable) the Companion NoteholdersTrustee, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties, including agreements and requests by the Mortgagor with respect to modifications of the standards of operation and management of the Mortgaged Properties or the replacement of asset managers, (H) to obtain, release, waive or modify any term other than a Money Term of a Mortgage Loan or Companion Loan and related documents subject to and to the extent permitted by Section 8.18, (I) to exercise all rights, powers and privileges granted or provided to the holder of the Mortgage Notes and (if applicable) Companion Notes under the terms of the Mortgage, including all rights of consent or approval thereunder, (J) to enter into lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements which may be requested by the Mortgagor or the Mortgagor's tenants, (K) to join the Mortgagor in granting, modifying or releasing any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties to the extent such does not adversely affect the value of the related Mortgage Loan or Companion Loan or of the Mortgaged Property, (L) to execute and deliver, on behalf of itself, the Trustee, the Trust, the Companion Noteholders Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans or Companion Loans and with respect to the Mortgaged Properties, and (M) hold in accordance with the terms of any Mortgage Loan or Companion Loan and this Agreement, Defeasance Collateral. Notwithstanding the above, the Servicer shall have no power to (i) waive any Yield Maintenance Charges or Prepayment Premiums or (ii) consent to any modification of a Money Term of a Mortgage Loan or Companion Loan. Nothing contained in this Agreement shall limit the ability of the Servicer to lend money to (to the extent not secured, in whole or in part, by any Mortgaged Property), accept deposits from and otherwise generally engage in any kind of business or dealings with any Mortgagor as though the Servicer was not a party to this Agreement or to the transactions contemplated hereby; provided, however, that this sentence shall not modify the Servicing Standard. (ab) The Servicer shall not be obligated to service and administer the Mortgage Loans or Companion Loans which have become and continue to be Specially Serviced Mortgage Loans, except as specifically provided herein. The Servicer shall be required to make all calculations and prepare all reports required hereunder with respect to such Specially Serviced Mortgage Loans (other than calculations and reports expressly required to be made by the Special Servicer hereunder) as if no Servicing Transfer Event had occurred and shall continue to collect all Scheduled Payments, make Servicing and P&I Advances as set forth herein and to render such incidental services with respect to such Specially Serviced Mortgage Loans, all as are specifically provided for herein, but shall have no other servicing or other duties with respect to such Specially Serviced Mortgage Loans. The Servicer shall give notice within three Business Days to the Special Servicer of any collections it receives from any Specially Serviced Mortgage Loans, subject to changes agreed upon from time to time by the Special Servicer and the Servicer. The Special Servicer shall instruct within one Business Day after receiving such notice the Servicer on how to apply such funds. The Servicer within one Business Day after receiving such instructions shall apply such funds in accordance with the Special Servicer's instructions. Each Mortgage Loan and (if applicable) Companion Loan that becomes a Specially Serviced Mortgage Loan shall continue as such until such Mortgage Loan and (if applicable) Companion becomes a Rehabilitated Mortgage Loan. The Servicer shall not be required to initiate extraordinary collection procedures or legal proceedings with respect to any Mortgage Loan and (if applicable) its related Companion Loan or to undertake any pre-foreclosure procedures. (bc) Concurrently with the execution of this Agreement, the Trustee will sign the Power of Attorney attached hereto as Exhibit S-1. The Servicer, shall promptly notify the Trustee of the execution and delivery of any document on behalf of the Trustee under such Power of Attorney. From time to time until the termination of the Trust, upon receipt of written request of the Servicer, the Trustee shall furnish the Servicer with any additional powers of attorney and other documents necessary or appropriate to enable the Servicer to service and administer the Mortgage Loans including, without limitation, documents relating to the management, operation, maintenance, repair, leasing or marketing of the Mortgaged Properties. The Servicer shall indemnify the Trustee for any costs, liabilities and expenses (including attorneys' fees) incurred by the Trustee in connection with the intentional or negligent misuse of such power of attorney by the Servicer. Notwithstanding anything contained herein to the contrary, neither the Servicer nor the Special Servicer shallshall not, without the Trustee's written consent: (iI) initiate any action, suit hire or proceeding solely under procure counsel to represent the Trustee's name without indicating the Servicer's or Special Servicer's, as applicable, representative capacity, Trustee or (iiII) take prepare, execute or deliver any action government filings, forms, permits, registrations or other documents which has have the effect of causing the Trustee to be registered to do business in any state. (cd) The Servicer shall make efforts consistent with the Servicing Standard and the terms of this Agreement to collect all payments called for under the terms and provisions of the applicable Mortgage Loans and Companion Loans (other than Specially Serviced Mortgage Loans or REO Properties). (de) The Servicer shall segregate and hold all funds collected and received pursuant to any Mortgage Loan or Companion Loan (other than the Pari Passu Loan) constituting Escrow Amounts separate and apart from any of its own funds and general assets and shall establish and maintain one or more segregated custodial accounts (each, an "Escrow Account") into which all Escrow Amounts shall be deposited within one (1) Business Day after receipt. The Servicer shall also deposit into each Escrow Account any amounts representing losses on Eligible Investments pursuant to the immediately succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which are required to be applied to the restoration or repair of any Mortgaged Property pursuant to the related Mortgage Loan and (if applicable) Companion Loan. Each Escrow Account shall be maintained in accordance with the requirements of the related Mortgage Loan and (if applicable) Companion Loan and in accordance with the Servicing Standard. Withdrawals from an Escrow Account may be made by the Servicer only: (i) to effect timely payments of items constituting Escrow Amounts for the related Mortgage Loan or Companion Loan; (ii) to transfer funds to the Certificate Account to reimburse the Servicer for any Advance relating to Escrow Amounts, but only from amounts received with respect to the related Mortgage Loan or Companion Loan which represent late collections of Escrow Amounts thereunder; (iii) for application to the restoration or repair of the related Mortgaged Property in accordance with the related Mortgage Loan and (if applicable) the related Companion Loan and in accordance with the Servicing Standard; (iv) to clear and terminate such Escrow Account upon the termination of this Agreement or pay-off of the related Mortgage Loan or Companion Loan; (v) to pay from time to time to the related Mortgagor any interest or investment income earned on funds deposited in the Escrow Account if such income is required to be paid to the related Mortgagor under applicable law or by the terms of the Mortgage Loan or Companion Loan, or otherwise to the Servicer; and (vi) to remove any funds deposited in a Escrow Account that were not required to be deposited therein or to refund amounts to the Mortgagors determined to be overages. Subject to the immediately succeeding sentence, (i) the Servicer may direct any depository institution or trust company in which the Escrow Accounts are maintained to invest the funds held therein in one or more Eligible Investments; provided, however, that such funds shall be either (x) immediately available or (y) available in accordance with a schedule which will permit the Servicer to meet the payment obligations for which the Escrow Account was established; (ii) the Servicer shall be entitled to all income and gain realized from any such investment of funds as additional servicing compensation; and (iii) the Servicer shall deposit from its own funds in the applicable Escrow Account the amount of any loss incurred in respect of any such investment of funds immediately upon the realization of such loss. The Servicer shall not direct the investment of funds held in any Escrow Account and retain the income and gain realized therefrom if the terms of the related Mortgage Loan or Companion Loan or applicable law permit the Mortgagor to be entitled to the income and gain realized from the investment of funds deposited therein, and the Servicer shall not be required to invest amounts on deposit in Escrow Accounts in Eligible Investments or Eligible Accounts to the extent that the Servicer is required by either law or under the terms of any related Mortgage Loan or Companion Loan to deposit or invest such amounts in another type of investments or accounts. In the event the Servicer is not entitled to direct the investment of such funds, (1) the Servicer shall direct the depository institution or trust company in which such Escrow Accounts are maintained to invest the funds held therein in accordance with the Mortgagor's written investment instructions, if the terms of the related Mortgage Loan or Companion Loan or applicable law require the Servicer to invest such funds in accordance with the Mortgagor's directions; and (2) in the absence of appropriate written instructions from the Mortgagor, the Servicer shall have no obligation to, but may be entitled to, direct the investment of such funds; provided, however, that in either event (i) such funds shall be either (y) immediately available or (z) available in accordance with a schedule which will permit the Servicer to meet the payment obligations for which the Escrow Account was established, and (ii) the Servicer shall have no liability for any loss in investments of such funds that are invested pursuant to written instructions from the Mortgagor. (ef) The relationship of each of the Servicer and the Special Servicer to the Trustee and to each other under this Agreement is intended by the parties to be that of an independent contractor and not of a joint venturer, partner or agent. (fg) With respect to each Mortgage Loan or Companion Loan, if required by the terms of the related Mortgage Loan or Companion Loan, any Lock-Box Agreement or similar agreement, the Servicer shall establish and maintain, in accordance with the Servicing Standard, one or more lock-box, cash management or similar accounts ("Lock-Box Accounts") to be held outside the Trust and maintained by the Servicer in accordance with the terms of the related Mortgage. No Lock-Box Account is required to be an Eligible Account. The Servicer shall apply the funds deposited in such accounts in accordance with terms of the related Mortgage, any Lock-Box Agreement and in accordance with the Servicing Standard. (gh) The Servicer shall not permit defeasance of any Mortgage Loan on or before the second anniversary of the Closing Date unless such defeasance will not result in an Adverse REMIC Event and the Servicer has received an opinion of counsel to such effect and all items in the following sentence have been satisfied. Subsequent to the second anniversary of the Closing Date, to the extent that the Servicer can, in accordance with the related Mortgage Loan or Companion Loan, require defeasance of any Mortgage Loan or Companion Loan in lieu of accepting a prepayment of principal thereunder, including a prepayment of principal accompanied by a Yield Maintenance Charge, if any, the Servicer shall, to the extent it is not inconsistent with the Servicing Standard, require such defeasance (or partial defeasance if permitted under the related Mortgage Loan or Companion Loan), provided that (i) the defeasance collateral consists of U.S. Treasury obligations, (ii) the Servicer has determined that the defeasance will not result in an Adverse REMIC Event, (iii) either (A) the related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer complies) to own the Defeasance Collateral or (B) the Servicer has established for the benefit of the Trust a Single-Purpose Entity to hold all Defeasance Collateral relating to the Defeasance Loans, and (iv) the Servicer has requested and received from the Mortgagor (A) an opinion of counsel generally to the effect that the Trustee will have a perfected, first priority security interest in such Defeasance Collateral and (B) written confirmation from a firm of independent accountants stating that payments made on such Defeasance Collateral in accordance with the terms thereof will be sufficient to pay the subject Mortgage Loan and (if applicable) the related Companion Loan (or the portion therethereof in connection with a partial defeasance) in full on or before its Maturity Date (or, in the case of an ARD Loan, on or before its Anticipated Repayment Date) and to timely pay each Scheduled Payment to be due prior thereto but after the defeasance. If the terms of the Mortgage Loan permit the Servicer to impose the foregoing requirements, no Rating Agency Confirmation from DCR or Fitch IBCA is required but the Servicer shall provide notice thereof to the Rating Agencies. If, however, the terms of the Mortgage Loan do not permit the Servicer to impose such requirements, the Servicer shall obtain a Rating Agency Confirmation from DCR and Fitch IBCA in connection with such Defeasance Loan. Any customary and reasonable out-of-pocket expense incurred by the Servicer pursuant to this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan pursuant to the related Mortgage, Mortgage Note or other pertinent document, if so allowed by the terms of such documents. In addition, the Servicer shall be entitled to collec